In an action brought by several women employees whose pregnancy had followed an abnormal course prior to the three months preceding their expected date of confinement, the Court of Justice has clarified the Community rules on the pay and working conditions of pregnant women.
In reply to a question referred for a preliminary ruling by the Sø- og Handelsret, Denmark, the Court of Justice has ruled on the validity, in Community law, of the Danish legislation on non-manual employees. That legislation provides inter alia that pregnant women who, for a reason connected with the pregnancy, are unfit for work before the beginning of the three-month period preceding their confinement are not entitled to full pay, while an employee who is totally unfit for work on grounds of illness is in principle entitled to full pay.
The Court points out first that pregnancy may bring about incapacity for work by reason of disorders and complications inherent in that condition. The fact that a woman is not entitled to full pay when her incapacity for work is the result of a pathological condition connected with her pregnancy must be regarded as treatment based essentially on the pregnancy and thus as discriminatory.
By contrast, where a pregnant woman is absent from her work before the beginning of her maternity leave, not because of a pathological condition or of any special risks for the unborn child, but by reason of routine pregnancy-related inconveniences or of mere medical recommendation, without there being any incapacity for work, the Court considers that the fact that some, or even all, of her salary is forfeited cannot be regarded as treatment based essentially on the pregnancy but rather as based on the choice of the employee not to work, without its being medically necessary. Legislation providing for some or all of the salary to be forfeited in such a case is not incompatible with Community law.
The Court then examines the Danish rule that the employer may, when he considers that he cannot provide work for a woman who is pregnant, although not unfit for work, send her home without paying her salary in full. If such a provision affects only women employees, it constitutes discrimination in breach of Community law.
Finally, the Court states that such a provision does not satisfy the formal and substantive conditions laid down in the European directive which authorises the employer, in certain circumstances, to grant a pregnant worker leave from her duties: the Danish legislation at issue is aimed at protecting not the biological condition of women, but rather the interest of the employer; moreover, under that legislation, the employer's decision can be taken without first examining whether it is possible to adjust the employee's working conditions and/or working hours, as stated in the Community directive.
The Court of Justice thus holds that the Danish legislation does not satisfy the formal and substantive conditions laid down in the directive for granting the employee leave from her duties.
Unofficial document for media use, which is not binding on the Court of Justice. Languages available: French, English, Danish.
For the full text of the judgment, please consult our Internet site www.curia.eu.int around 3pm today. For further information please contact Mr Tom Kennedy tel: (352) 4303-3355 fax: (352) 4303 2731