Dismissal of a woman at any time during her pregnancy for absences caused by illness resulting from that pregnancy is contrary to Community law. The period of absence during pregnancy cannot be taken into account for computation of the period justifying dismissal under national law.

Mrs Brown was employed by Rentokil as a driver. In August 1990 she informed Rentokil that she was pregnant. From 16 August 1990 she was unable to work owing to difficulties associated with the pregnancy.

Under Rentokil's employment contracts, if an employee of either sex was absent for illness for more than 26 weeks continuously, he or she would be dismissed. Pursuant to that rule, because Mrs Brown had not returned to work since 16 August, she was dismissed with effect from 8 February 1991. Her child was born on 22 March 1991.

After her action challenging that decision and successive appeals had been dismissed, Mrs Brown then appealed to the House of Lords, which decided to ask the Court of Justice to interpret the Community rules concerning equal treatment for men and women.

In its judgment the Court reiterates first of all that dismissal of a female worker on account of pregnancy, or essentially on account of pregnancy, can affect only women and therefore constitutes direct discrimination on grounds of sex.

The Court then goes on to observe that pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. Such disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition.

Since the Court has already established that protection against dismissal must be afforded to women throughout the period of maternity leave, the principle of non-discrimination requires similar protection throughout the period of pregnancy.

Dismissal of a woman during pregnancy for absences due to incapacity for work arising from the pregnancy is linked to the occurrence of risks inherent in pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex.

However, a woman's absences after maternity leave may be taken into account for computation of the period justifying her dismissal under national law on the same conditions as a man's absences, of the same duration, through incapacity for work.

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For the full text of the judgment or for further information, please contact Tom Kennedy tel: (00 352) 4303-3355 fax: (00 352) 4303 2731