C-411/96

OPINION OF MR RUIZ-JARABO — CASE C-411/96

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 19 February 1998 *

Summary

I — The facts I - 6407

II — The applicable national provisions I - 6408

A — Legal provisions concerning employment rights in the event of pregnancy and maternity and the right to be paid when absent from work I - 6408

VII — Consideration of the preliminary questions I - 6423

(1) The first question I - 6424

(2) The second question I - 6431

(3) The third question I - 6432

(4) The fourth question I - 6435

(5) The fifth question I - 6436

3. The applicants are employees of the EOC and are all of childbearing age. They have all completed one year's service with the EOC . They were not employed on a casual or 2. The proceedings before the Industrial Tri­ standby basis and none of them was employed bunal have been brought by Mrs Boyle and for a fixed term of less than two years. other female employees of the Equal Oppor­ Mrs Boyle started working for the EOC for tunities Commission (hereinafter 'the EOC ), an indefinite period around 1976. During her a public body set up under the Sex Discrimi­ employment she has taken maternity leave on nation Act 1975 to promote equal treatment two occasions. The dates of birth of the plain­ and equality of opportunity as between men tiffs in the main proceedings are: Mrs Boyle, and women in the United Kingdom. The 23 June 1953, Mrs Taylor, 24 June 1961, and Mrs Mansley, 14 December 1961. The last two each took maternity leave recently and 1 — Council Directive 92/85/EEC of 19 October 1992 on the all three may wish to take further periods of introduction of measures to encourage improvements in the maternity leave: hence their interest in having safety and health at work of pregnant workers and workers who have recently given birth or are breast-feeding (Tenth the contested provisions in their employment individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1). contracts declared void or unenforceable.

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II — The applicable national provisions exceed 29 weeks, I shall use the expression 'unpaid maternity leave'.

5. Sections 164 to 166 of the Social Security Contributions and Benefits Act 1992 govern the right of workers who have been employed for a specified period, 2and whose earnings 4. Sections 71 to 78 of the Employment Rights are of a specified level, 3to receive Statutory Act 1996 grant all female workers a general Maternity Pay from their employer for a right to maternity leave for a continuous maximum of 18 weeks, if they are absent from period of 14 weeks (hereinafter 'maternity work on account of pregnancy or maternity. leave'), commencing either on the date which There are two rates of Statutory Maternity the employee notifies to her employer or on Pay: the higher rate and the lower rate. The the first day after the beginning of the sixth higher rate consists of nine-tenths of the wom­ week before the expected date of childbirth, an's normal weekly earnings in the eight weeks whichever is earlier. preceding the 14th week before the expected week of confinement; the lower rate, which is fixed and amounts at present to UKL 54.55, is paid where its amount exceeds the nine- tenths figure. A woman who , for two con­ tinuous years ending at the start of the 14th week prior to the expected week of confine­ ment, has worked for an employer who is under an obligation to pay her the benefit Sections 79 to 85 of that Act grant employees will receive it at the higher rate for the first who meet certain conditions, including con­ six weeks and at the lower rate for the tinuous employment for the two preceding remainder of the period. A woman who is years, the right to return to work after their entitled to Statutory Maternity Pay, but does maternity leave, at any time during the 29 not qualify for the higher rate, will receive it weeks following the week in which childbirth at the lower rate. occurred — the 'right to return to work'. To describe the period of time for which the worker may stop working on account of pregnancy and maternity and retain the right 2 — At least 26 weeks ending with the week preceding the 14th to return to work, the duration of which may, week before the expected week of confinement. 3 — This must not be less than the lowest level of income taken by virtue of a concession from the employer, into account for the payment of social security contributions.

6. Paragraph 5 of Schedule 5 to the Social 3.1 A member of staff will be allowed 3 Security Act 1989, which incorporates in months and 1 week's paid maternity leave domestic law the provisions of Directive for the period of continuous absence 86/378/EEC, 4 governs the situation of a before and after childbirth, provided that woman on maternity leave regarding the she: accrual of pension rights under an occupa­ tional scheme. By virtue of that provision, a woman must be allowed to continue to belong to an occupational pension scheme as if she were working normally. She may not receive more favourable treatment than a woman in — states that she intends to return to active employment, but her contributions to work in the EOC after childbirth and she agrees to repay any payment made during that period if she fails to return. 4 — Council Directive 86/378/EEC of 24 July 1986 on the imple­ Such payment will exclude any Statu­ mentation of the principle of equal treatment for men and tory Maternity Pay to which there is women in occupational social security schemes (OJ 1986 L 225, p. 40). an entitlement;

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— is in paid service with the EOC at the exceeded or the employee agrees to time her maternity leave begins and curtail it. has rendered at least one year's such service;

4.2 A permanent member of staff with less — is not employed on a casual, standby than one year's service is entitled to a or short notice appointment; total of 26 weeks' leave.

— is not employed on a fixed-term appointment of less than two years. 4.3 All other employees, regardless of type of contract and number of hours worked, are entitled to 14 weeks' leave.

— paid maternity leave must start from — the sixth week before the expected the actual date of childbirth if this week of childbirth. occurs earlier than:

— the expected week of childbirth, or 6.3 The minimum period of service that must be completed following paid maternity leave is one calendar month. Where this requirement is not satisfied, the member of staff will be asked to repay any salary or wages paid for the period of maternity — the date a member of staff has leave (less any Statutory Maternity Pay). specified for beginning her mater­ nity leave.

7.1 Paid sick leave is not allowed once paid 5.2 If a member of staff specifies that she maternity leave has begun or during a wishes to begin her maternity leave in period of unpaid maternity leave. There any of the six weeks before the expected may, however, be an entitlement to Statu­ week of childbirth, the following restric­ tory Sick Pay during unpaid maternity tion applies: leave. Evidence of incapacity must be submitted to the Personnel and Payroll Unit so that any eligibility for Statutory Sick Pay can be determined.

— if she is on a pregnancy-related sick absence immediately before her speci­ fied date and childbirth occurs during the period of sick absence, paid mater­ nity leave can be brought forward to whichever is the later of: 7.2 Where a member of staff has provided at least three weeks' notification of her inten­ tion to return to work on a specified date, paid sick leave will be allowed from this date. Paid sick leave following childbirth — the beginning of the period of sick terminates the maternity leave arrange­ absence; ments.

C — Provisions of the Equal Opportunities Commission Staff Handbook Annual leave is not taken instead of sick leave. Staff who fall ill or are injured during annual leave to the extent that they are unfit to work should inform their line manager as

8. In the order for reference, the Industrial 6 — Annex 4 governs types of leave available to EOC employees, namely: Annual Leave, Public and Privilege Leave, Sick Leave, Tribunal states that the parties agree that Medical Appointments, Special Leave and Maternity Leave.

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soon as possible, and submit either a of sick leave totalling up to 28 weeks self-certificate or a doctor's note provided that there are four or more (according to the duration of sick leave) consecutive days on which an employee as soon as possible after that. The is unable to work and provided certain period of absence covered by the note other State benefits are not being paid. will then count as sick leave. SSP rates are generally less than the EOC's own sick pay provisions and therefore the EOC normally fulfils its legal requirements in respect of SSP by virtue of the sick pay arrangements described in 4.3.4. ...

4.3.4 Sick Pay

'In circumstances such as those of the present cases, do any of the following matters infringe the prohibition of unfair and/or unfavourable treatment of women because of pregnancy, childbirth, maternity and/or sickness in rela­ (3) A prohibition on a woman, who is unfit tion thereto under EC law (in particular for work for any reason whilst on mater­ Article 119 of the Treaty of Rome and/or nity leave, from taking paid sick leave, Council Directive 75/117/EEC 7 and/or unless she elects to return to work and 8 Council Directive 76/207/EEC and/or terminate her maternity leave. Council Directive 92/85/EEC):

(4) A condition limiting the time during which (1) A condition that maternity pay, beyond annual leave accrues to the statutory min­ the Statutory Maternity Pay, is paid only imum period of 14 weeks maternity leave if the woman states that she intends to and accordingly excluding any other return to work and agrees to be liable to period of maternity leave.

7 — Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19). 8 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational (5) A condition limiting the time in which training and promotion, and working conditions (OJ 1976 L 39, p. 39). pensionable service accrues during mater-

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BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION

'Each Member State shall during the first stage ensure and subsequently maintain the appli­ cation of the principle that men and women should receive equal pay for equal work.

'The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter "principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of all dis­ crimination on grounds of sex with regard to all aspects and conditions of remuneration.

For the purpose of this article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment …' from his employer.

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Article 3 equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions ... this principle is here­ inafter referred to as "the principle of equal treatment". 'Member States shall abolish all discrimina­ tion between men and women arising from laws, regulations or administrative provisions which is contrary to the principles of equal pay.' y

BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION

Article 5 13. Article 6 of Directive 86/378 provides:

'1 . Provisions contrary to the principle of '1 . Application of the principle of equal treat­ equal treatment shall include those based on ment with regard to working conditions, sex, either directly or indirectly, in particular including the conditions governing dismissal, by reference to marital or family status, for: means that men and women shall be guaran­ teed the same conditions without discrimina­ tion on grounds of sex.

2. To this end, Member States shall take the measures necessary to ensure that: (g) suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer; (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

(b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of under­ takings or in rules governing the inde­ 14. Finally, Article 8 of Directive 92/85 pro­ pendent occupations and professions shall be, or may be -declared, null and void or vides with regard to maternity leave: may be amended;

'1 . Member States shall take the necessary measures to ensure that workers within the ...' meaning of Article 2 [who are pregnant, have

(a) the rights connected with the employ­ These conditions may under no circumstances ment contract of workers within the provide for periods of previous employment meaning of Article 2, other than those in excess of twelve months immediately prior referred to in point (b) below; to the presumed date of confinement.'

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V — Observations submitted to the Court conditions, contrary to Article 5 of Directive of Justice 76/207.

In their opinion, it is also discriminatory and 15. Written observations have been submitted thereby contrary to Community law to refuse in these proceedings, under Article 20 of the to permit a woman who falls ill after mater­ EC Statute of the Court of Justice, by the nity leave has commenced to take paid sick applicants in the main proceedings, jointly, leave. In such circumstances an employee who the EOC , the Governments of the United is unfit for work is denied the right, on Kingdom and Ireland and the Commission. account of her pregnancy or the fact that she The Austrian Government also attended the has recently given birth, from exercising her hearing to present oral observations. contractual right to take sick leave, on full pay, and she is required to take her maternity leave, at the end of which she must repay part of her remuneration if she does not return to work.

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BOYLE AND OTHERS v EQUAL OPPORTUNITIES COMMISSION

19. Ireland considers that Directive 92/85, It suggests that the second and third ques­ adopted to protect the health and safety of tions be considered together, since both deal pregnant workers and to uphold their employ­ with situations in which maternity leave partly ment rights, contains the main provisions coincides with unfitness for work on grounds governing maternity in the case of working of illness, and that they are governed by the women, except as regards circumstances not principle that an employee cannot be in both covered by the directive, in which case it is sets of circumstances at the same time. That necessary to rely on other provisions of Com­ appears to the Commission to be a perfectly munity law, in particular Directive 75/117 or legitimate rule, provided that its application Directive 76/207. It considers, however, that does not mean that the employee is deprived in this case the answer to the preliminary of her 'physical' and legal right to a con­ questions is to be found in Directive 92/85, tinuous and protected period of at least 14 the provisions of which do not preclude the weeks' maternity leave. It would be contrary application of the disputed provisions to to the spirit of Directive 92/85 for an employee female employees of the EOC . to be compelled to give up her maternity leave in order to be able to take sick leave.

23. But the Court has also taken the view that in order to determine whether it has jurisdiction, it is a matter for the Court of 21. In the same way as the Commission in its Justice to examine the conditions in which written observations, I too have wondered the case has been referred to it by the national whether the Court of Justice has jurisdiction court. The spirit of cooperation which must to answer the questions. At first sight, it prevail in the prehminary-ruling procedure would not appear particularly useful to inter­ requires the national court to have regard to pret Community provisions laying down the the function entrusted to the Court of Justice, principle of equal pay and the principle of which is to assist in the administration of jus­ equal treatment for men and women, and the tice in the Member States and not to deliver provisions of Directive 92/85 relating to mater­ advisory opinions on general or hypothetical 10 nity leave and the maintenance of employ­ questions. ment rights during that period, when the dis­ putes pending before the national court, although certainly relating to the compat­ ibility with Community law of certain clauses of the applicants' employment contracts, do 24. And it also said that a request for a pre­ not derive from the actual application of those liminary ruling from a national court may be clauses to them. rejected only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the 1 main action. 1

law and therefore void, in order to preclude void or capable of being avoided in conse­ their application to them in the future, should quence of the legal prohibition of night work the case arise. Since national law allows them by pregnant women; Webb, concerning the to bring such actions, I am of the opinion non-comparability of the situation of a preg­ that the questions submitted are objectively nant woman who is unable to carry out the necessary in order to resolve the disputes and task for which she was recruited with that of that the Court of Justice must answer the a man suffering the same incapacity for med­ 12 1 questions. ical or other reasons; and Larsson, 8con­ cerning the possibility of taking into account, for the purposes of dismissal, of absence due to a woman's incapacity for work as a result of pregnancy, before the start of maternity leave. An Opinion has been delivered but 19 judgment is still awaited in the Thibault case VII — Consideration of the preliminary ques- concerning the possibility of a woman not tions being given an annual assessment report because she was absent from work on mater­ 20 nity leave; the Høj Pedersen case, con­ cerning the right to equal pay when a wom­ an's pregnancy renders her unfit for work; 21 and the Brown case concerning the possi­ bility of dismissal of a pregnant worker because her absence due to unfitness for work attributable to pregnancy exceeded the period which, under the employment contract, ren­ 26. To date, the Court has given several judg­ dered workers liable to dismissal on grounds ments on the application of the principle of of illness. equal pay and the principle of equal treat­ ment for men and women to cases involving the employment rights of workers who are pregnant or who have recently given birth. 1 Examples are Gillespie, 3dealing with pay 14 during maternity leave; Dekker, concerning a refusal to appoint a pregnant woman; 1 Hertz, 5concerning the dismissal of a woman on account of incapacity for work which commenced after maternity leave and was attributable to an illness caused by the con­ 16 finement; Habermann-Beltermann, con­ A common denominator in all those cases is cerning the possibility of declaring a contract that it was or is necessary for them to be

Since it is an individual directive which, as indicated by its very title, purports to apply measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recendy given birth or (1) The first question are breast-feeding, I consider that, in order to answer the preliminary questions, it will be necessary to rely primarily on the provisions of that directive and, on a subsidiary basis, on the remainder of the Community legislation of more general scope.

29. I infer that by this question the national court wishes to ascertain whether the Com­ munity law provisions which it cites mean that an employer, who is prepared, for the 28. Before examining the various questions, I benefit of his employees, to go beyond the must point out that, in order to answer them, legal provisions applicable to pay during it is necessary to reformulate them since, oth­ maternity leave, is precluded from imposing, erwise, in view of the complexity and origi­ as a quid pro quo, by means of clauses like nality of the national legislation on which the those of the EOC Maternity Scheme, the

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requirement that the employees declare, before to be paid for the first six weeks, and a fixed commencing maternity leave, that they intend amount which at present is UKL 54.55 per returning to work and give an undertaking to week for the remainder of the period. If she repay the difference between the full salary does not fulfil the conditions for entitlement paid to them and the Statutory Maternity Pay to the latter allowance, the worker may apply that they would have received had they not for the Maternity Allowance, which amounts given an undertaking to return to work, in to UKL 54.55 per week. the event of their failing to come back to work for at least one month.

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circumstances will not have received income lower than the wages received by the worker equivalent to that to which she would have whilst at work or in any other circumstances. been entitled if the break in her activities had been attributable to an illness. In the Com­ mission's view, Article 11(2)(b) and (3) of Directive 92/85 must be construed as meaning that the term 'adequate', used in the text in relation only to the allowance, must also apply to remuneration, so that it will be nec­ essary to consider the question of adequacy 33. Secondly, because the distinction between in each case, having regard to the legitimate pay and allowances is linked with the source expectations of the particular employee, and of the income payable to the woman. Thus, drawing a comparison with the amount she with regard to pay, reference must be made to would receive if on sick leave. Article 119 of the Treaty which defines it broadly as: '... the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer'. That definition has been completed by the case-law of this Court which, since 1971, has included within that concept 'immediate or future' 23 consideration and, in 1990, it added that the benefits paid by an employer to a worker in respect of his employment are to be clas­ sified as pay 'whether they are paid under a contract of employment, by virtue of legisla­ 24 tive provisions or on a voluntary basis'.

either directly or through management agen­ of a percentage of income, it must be con­ cies. cluded that, where Directive 92/85 indicates that the allowance will be deemed adequate if it guarantees income at least equivalent to that which the worker would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down by national legislation, it is referring to allowances paid by national social security schemes and not to pay from In my opinion, the terminology used for the the employer in respect of employment. two concepts supports that interpretation. Clearly the latter must also be adequate, but Where the provision refers to 'a payment', it I do not believe that, in practice, an employer, is accompanied by the word 'maintenance'. whether public or private, who has to nego­ This means that, either by operation of law tiate working conditions with his employees, or by virtue of a collective agreement or indi­ individually or collectively, will be able to vidual contract, it will be the employer who pay less to his employees during maternity must ensure that the employee receives, whilst leave than they would receive from the social on maternity leave and in respect of the security authorities by way of sickness ben­ employment relationship, a given level of efits. income which, as I pointed out earlier, does not necessarily have to coincide with full pay. On the other hand, where the provision refers to 'an ... allowance', it is accompanied by the words 'entitlement to' , which brings it closer to the sphere of social security protection and distances it somewhat from the concept of pay.

35. Thirdly, I do not agree with the interpre­ ceases. The Commission asserts that the ade­ tation advocated by the Commission because quacy of the income received during mater­ Article 11(2)(b) of Directive 92/85 contem­ nity leave will depend on the legitimate expec­ plates the possibility of guaranteeing at the tations of the employee concerned regarding same time 'maintenance of a payment' and level of pay when she is unfit for work. But, 'entitlement to an adequate allowance'. If that what will be the legitimate expectations of an meant that both of them had to be adequate employee who is already in the second stage, within the meaning of the directive — by that is to say when she is receiving only half guaranteeing income at least equivalent to that pay? And I need not speculate on the expec­ which the worker would receive in the event tations of a person whose incapacity for work of a break in her activities on grounds of has gone on to the point that she no longer health — the result would be that she could receives any pay at all. be entitled to receive from her employer the remuneration which the latter is required to pay his employees in the event of incapacity for work and, in addition, the allowance pro­ vided by the social security scheme by way of sickness benefit. On the contrary, I believe that the only possibility of both being pay­ able arises where the social security benefit, which normally represents a 'minimum', may be supplemented by the employer, either by operation of law or under an agreement with his employees. 37. It is clear from the documents before the Court, first, that the national legislation requires employers to pay employees who fulfil certain conditions regarding length of service and level of earnings Statutory Mater­ nity Pay, consisting of nine-tenths of their ordinary wages for the first six weeks of maternity leave and a fixed amount which at present is UKL 54.55 per week for the remainder of the period. The latter amount coincides with the Maternity Allowance and with the statutory sickness benefit paid by the employer for a maximum of 28 weeks.

38. In the light of the interpretation which I propose for Article 11 (2)(b) of Directive 92/85, I do not believe that its provisions mean that an employer, who is prepared, for the benefit of his employees, to go beyond the legal pro­ visions applicable to pay during maternity leave, is precluded from imposing, as a quid pro quo, by means of clauses like those of the EOC Maternity Scheme, the requirement that the employees declare, before commencing maternity leave, that they intend returning to 40. According to settled case-law of this work and give an undertaking to repay the Court, 'discrimination can arise only through difference between the full salary paid to them the application of different rules to compa­ and the Statutory Maternity Pay that they rable situations or the application of the same would have received had they not given an 25 rule to different situations'. Now , in undertaking to return to work, in the event Gillespie, in which it was sought to clarify of their failing to come back to work for at whether the principle of equal pay contained least one month. in Article 119 of the Treaty and developed in Directive 75/117 made it compulsory to main­ tain full pay for workers on maternity leave, the Court of Justice held that women taking maternity leave provided for by national leg­ islation are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work, reaching the conclusion that neither Article 39. The applicants in the main proceedings 119 of the Treaty nor Directive 75/117 impose also allege discrimination regarding equal pay for men and women stemming from the fact that, to be entitled to receive full pay whilst on maternity leave, they must undertake to 25 — Case C-279/93 Schumacher [1995] ECR I-225, paragraph 30.

In response to the question whether Com­ munity law laid down specific criteria — and, if so, what — for determining the amount of benefit to be paid to workers on maternity leave, the Court answered '[n]or did those provisions [Article 119 of the Treaty and Article 1 of Directive 75/117] lay down any specific criteria for determining the amount of benefit to be paid to them during that period. The amount payable could not, how­ 41. I would also add that the situation of a ever, be so low as to undermine the purpose man rendered unfit for work by illness and of maternity leave, namely the protection of that of a woman taking maternity leave are women before and after giving birth. In order certainly not comparable in any way. The to assess the adequacy of the amount payable man, had he not been ill, would be working from that point of view, the national court must take account, not only of the length of and, on being declared fit, would have to maternity leave, but also of the other forms return to work, whereas maternity leave is of social protection afforded by national law granted to a woman in order to safeguard her in the case of justified absence from work. biological state during and after pregnancy There is nothing, however, to suggest that in and to protect the special relationship between the main proceedings the amount of the ben­ mother and child in the period following 28 efit granted was such as to undermine the confinement. Moreover, as I stated in the 27 objective of protecting maternity leave'. In Opinion which I delivered in the Høj Ped- 29 Gillespie, the workers had received the fol­ ersen case, during maternity leave a woman lowing benefits during maternity leave, under is not only released from work but also from their collective agreement: their full weekly any other obligation under her employment pay for the first four weeks, nine-tenths of contract, whereas a man or woman declared their full pay for the next two weeks and, unfit for work is required to undergo the finally, half their full pay for 12 weeks, such therapeutical treatment prescribed by the conditions being more advantageous than doctor in order to assist recovery.

43. By this question, the national court appears to be asking whether, under the pro­ visions of Community law which it cites, it is not permissible, by recourse to clauses like those forming part of the respondent's Mater­ nity Scheme, to provide that, where a worker has indicated that she wishes to commence maternity leave on any date in the six weeks prior to the expected week of confinement and is declared unfit for work on account of 45. The applicants consider it discriminatory pregnancy immediately before that date, then, for a woman who is unfit for work not to be if the birth occurs whilst she is in that situa­ able to exercise her right to remain on sick tion, the commencement of her maternity leave with full pay if her illness is attributable leave may be backdated to the later of the fol­ to pregnancy and she gives birth whilst in lowing two dates: the beginning of the period that situation.

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46. I do not agree with that interpretation. the period of sick absence or the start of the Before Directive 92/85 imposed on the sixth week prior to the expected week of con­ Member States the obligations under review finement. here, that is to say when the only Commu­ nity provision dealing with pregnancy and maternity was Article 2(3) of Directive 76/207 — which did no more than authorise them to adopt provisions to uphold women's specific rights for those two reasons — the Court held, in Hertz, that it is for every Member State to fix periods of maternity leave in such (3) The third question a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confine­ 30 ment occur.

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determined by reference to the conditions on unpaid maternity leave are not automati­ fulfilled by the workers and for which remu­ cally granted the right to sick leave on full neration is limited to the payment by the pay (they are entitled only to Statutory Sick employer of Statutory Maternity Pay for the Pay), whereas male workers automatically first four weeks, I do not consider that it can enjoy that right for the first six months of a be regarded as maternity leave within the period of 12 months, it must also be recogn­ meaning of Directive 92/85. In the present ised that the situations are different, since men case, the workers are entitled to be absent are not granted any right to unpaid parental from work for up to 52 weeks. That period leave. But there is another important differ­ includes the 14 weeks' maternity leave and ence which becomes apparent when both fall the remainder will be unpaid maternity leave. ill: to be able to claim that right, a male worker The applicants consider that the clause in the must be at work (and I do not think that the Maternity Scheme which makes receipt of full fact that he may fall ill whilst on annual leave pay, if they fall ill during the period of unpaid leave, conditional upon their giving up their changes that assessment), whilst the woman is special arrangements, discriminates against on unpaid leave, during which she is relieved women who find themselves in that situation. of the obligation to work.

(4) The fourth question whilst the worker is taking the maternity leave provided for in Article 8, that is to say for 14 weeks. For the remaining time, up to the 52 weeks representing the maximum period for which an employee of the EOC may be 56. By this question, the national court seeks absent from work on account of pregnancy and maternity, she will be in the special situ­ a ruling as to whether, under the Community ation which I described when considering law provisions which it cites, it is not permis­ unpaid maternity leave in connection with sible, by recourse to a stipulation of the kind the answer to be given to the third question. contained in the EOC Maternity Scheme, to For the reasons which I put forward at that limit the period for which annual leave entitle­ time, I consider that Directive 92/85 does not ment accrues to the 14 weeks' maternity leave impose the obligation to safeguard an employ­ and to exclude such accrual whilst the woman ee's rights under her employment contract, concerned is on leave of another kind in order such as the accrual of annual leave, beyond to care for a newborn child. the 14 weeks' maternity leave provided for in Article 8.

57. Article 11(2)(a) of Directive 92/85 requires the Member States, whilst a worker is taking the maternity leave provided for in Article 8, to safeguard the rights connected with her employment contract. There is no doubt that the accrual of annual leave is one of the rights connected with an employee's employment 59. The applicants maintain that that clause, contract. Nor is there any doubt that, for the which is ostensibly neutral, involves indirect 14-week period of maternity leave in the discrimination, since, during their working United Kingdom, regardless of any right to life, it is women who most frequently take receive any particular income, employees are unpaid leave, since they are allowed to take guaranteed the accrual of annual leave. unpaid maternity leave.

However, the argument that that provision (5) The fifth question adversely affects a much larger number of women because they more frequendy take unpaid leave cannot succeed in the present case since the leave taken by the women referred to by the applicants in support of their allegation of indirect discrimination 63. By this question the national court wishes reflects special arrangements which have no to ascertain whether any of the provisions connection with unpaid leave taken volun­ which it cites precludes imposition, for the tarily for personal reasons, which is available to both men and women. In the first place, in the United Kingdom only women may take 32 — In Case C-200/91 Colorou [1994] ECR I-4389, the Court of unpaid leave to look after a newborn child, of Justice stated in reply to questions from the High Court as a predetermined duration and with the right to whether, in the sphere of equal pay for men and women, Article 119 of the Treaty was applicable to company pen- sion schemes which at all times nave had members of only one sex, that 'a worker cannot rely on Article 119 in order to claim pay to which he could be entitled if he belonged to the other sex in the absence, now or in the past, in the 31 — Case C-1/95 Gerner [1997] ECR I-5253, paragraph 30; Case undertaking concerned of workers of the other sex who per- C-100/95 Kording [1997] ECR I-5289, paragraph 16; Case form or performed comparable work. In such a case, the C-444/93 Megner and Scheffel [1995] ECR I-4741, para- essential criterion for ascertaining that equal treatment exists graph 24; and Case C-343/92 Roks and Others [1994] ECR in the matter of pay, namely the performance of the same I-571, paragraph 33. work and receipt of the same pay, cannot be applied.'

66. It is true that such a possibility appears to be acceptable by virtue of Article 6(g) of 64. I must point out once again that Article Directive 86/378, in so far as it provides that 11(2)(a) of Directive 92/85 provides that provisions contrary to the principle of equal workers must, when on maternity leave, which treatment are to include those based on sex, is to be of at least 14 weeks' duration, have which suspend the retention or acquisition of the rights connected with their employment rights during periods of maternity leave or contracts maintained. There is no doubt at all leave for family reasons which are granted by that the accrual of pension rights, particularly law or agreement and are paid by the employer. where, as in this case, they form part of an In fact the rule in the Maternity Scheme at occupational scheme financed entirely by the issue is consistent with that provision: pen­ employer, is one of the rights connected with sion rights continue to accrue whilst pay, in the worker's employment contract. the form either of salary or of Statutory Maternity Pay, is paid by the employer. On the other hand, the accrual of pension rights is interrupted when the income received by the woman during that period is paid out of public or private funds unconnected with the However, Clause 8.1 of the EOC Maternity employer or when she receives no income at Scheme provides that where an employee is all. not entitled to receive full pay during her maternity leave, the 14 weeks' absence will be taken into account for the purposes of the accrual of pension rights only if she is entitled to receive Statutory Maternity Pay.

new version of that article has not changed filling the requirements laid down by national that provision, I consider that Article 11(2)(a) legislation in order to qualify for those advan­ of Directive 92/85, under which workers are tages. to be guaranteed during maternity leave of a continuous period of at least 14 weeks the rights connected with their employment con­ tracts, must be interpreted as meaning that the accrual of pension rights under an occu­ 68. On the other hand, on the basis of the pational scheme during the 14 weeks' mater­ reasons set out in relation to the third and nity leave may not be made conditional upon fourth questions regarding unpaid maternity the worker's receiving, in the form of pay or leave, I consider that Community law does Statutory Maternity Pay, income paid by the not preclude a woman from being denied the employer. possibility of accruing pension rights under an occupational scheme whilst she is on unpaid leave of that kind.

of the principle of equal pay for men and women, nor Council Directive 76/20 7/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promo­ tion, and working conditions, nor Council Directive 92/85/EEC on the intro­ duction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breast-feeding (tenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) precludes the application of clauses of the kind examined in this Opinion under which:

(a) an employer, who is prepared, for the benefit of his employees, to go beyond the legal provisions applicable to pay during maternity leave, imposes, as a quid pro quo, by means of clauses like those of the EOC Maternity Scheme, the requirement that the employees declare, before com­ mencing maternity leave, that they intend returning to work and give an undertaking to repay the difference between the full salary paid to them and the Statutory Maternity Pay that they would have received had they not given an undertaking to return to work, in the event of their failing to come back to work for at least one month;

(b) where a worker has indicated that she wishes to commence maternity leave on any date in the six weeks prior to the expected week of confinement and is declared unfit for work on account of pregnancy immediately before that date, then, if the birth occurs whilst she is in that situation, the com­ mencement of her maternity leave may be backdated to the later of the fol­ lowing two dates: the beginning of the period of sick leave or the start of the sixth week prior to the expected week of confinement;

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