JUDGMENT OF THE COURT

27 October 1998 (1)

(Equal pay and equal treatment for men and women — Maternity leave — Rightsof pregnant women in respect of sick leave, annual leave and the accrual ofpension rights)

In Case C-411/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the IndustrialTribunal, Manchester (United Kingdom), for a preliminary ruling in theproceedings pending before that court between

Margaret Boyle and Others

and

Equal Opportunities Commission

on the interpretation of Article 119 of the EC Treaty, Council Directive75/117/EEC of 10 February 1975 on the approximation of the laws of the MemberStates relating to the application of the principle of equal pay for men and women(OJ 1975 L 45, p. 19), Council Directive 76/207/EEC of 9 February 1976 on theimplementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditions(OJ 1976 L 39, p. 40), and Council Directive 92/85/EEC of 19 October 1992 on theintroduction of measures to encourage improvements in the safety and health atwork of pregnant workers and workers who have recently given birth or are

breastfeeding (tenth individual Directive within the meaning of Article 16(1) ofDirective 89/391/EEC) (OJ 1992 L 348, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn (Rapporteur),J.-P. Puissochet and P. Jann (Presidents of Chambers), C. Gulmann, J.L. Murray,D.A.O. Edward, H. Ragnemalm, L. Sevón, M. Wathelet and R. Schintgen, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    Mrs Boyle and Others, by Dinah Rose, Barrister, instructed by Alison Eddy,Solicitor,

—    the Equal Opportunities Commission, by Peter Duffy QC, instructed byAlan Lakin, Solicitor,

—    the United Kingdom Government, by Lindsey Nicoll, of the TreasurySolicitor's Department, acting as Agent, and by Eleanor Sharpston,Barrister,

—    the Irish Government, by Michael A. Buckley, Chief State Solicitor, actingas Agent, and by Niamh Hyland, BL,

—    the Commission of the European Communities, by Marie Wolfcarius andCarmel O'Reilly, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Boyle and Others, represented by DinahRose, of the Equal Opportunities Commission, represented by Peter Duffy QC, ofthe United Kingdom Government, represented by John E. Collins, AssistantTreasury Solicitor, acting as Agent, and Eleanor Sharpston, of the IrishGovernment, represented by Brian Lenihan SC, and Niamh Hyland, of the AustrianGovernment, represented by Christine Pesendorfer, Oberrätin imBundeskanzleramt, acting as Agent, and of the Commission, represented by MarieWolfcarius and Carmel O'Reilly, at the hearing on 13 January 1998,

after hearing the Opinion of the Advocate General at the sitting on 19 February1998,

gives the following

Judgment

1.

    By order of 15 October 1996, received at the Court on 23 December 1996, theIndustrial Tribunal, Manchester, referred to the Court for a preliminary rulingunder Article 177 of the EC Treaty five questions on the interpretation of Article119 of the EC Treaty, Council Directive 75/117/EEC of 10 February 1975 on theapproximation of the laws of the Member States relating to the application of theprinciple of equal pay for men and women (OJ 1975 L 45, p. 19), Council Directive76/207/EEC of 9 February 1976 on the implementation of the principle of equaltreatment for men and women as regards access to employment, vocational trainingand promotion, and working conditions (OJ 1976 L 39, p. 40) and Council Directive92/85/EEC of 19 October 1992 on the introduction of measures to encourageimprovements in the safety and health at work of pregnant workers and workerswho have recently given birth or are breastfeeding (tenth individual Directive withinthe meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).

2.

    Those questions were raised in proceedings between Mrs Boyle and Others andtheir employer, the Equal Opportunities Commission (hereinafter 'the EOC‘),concerning the Maternity Scheme applied by the latter to its staff. The nationalcourt states that the EOC is agreed to be an emanation of the State for thepurposes, as far as it is concerned, of the direct effect of the directive at issue.

The national legislation

3.

    In the United Kingdom, the Employment Rights Act 1996 grants female employeesa general right to maternity leave. Section 72 provides that that leave commenceseither on the date which the employee notifies to her employer as the date onwhich she intends her period of absence from work to commence, or on the firstday after the beginning of the sixth week before the expected week of childbirth onwhich she is absent from work wholly or partly because of pregnancy, whichever isthe earlier.

4.

    Section 73(1) of the Act provides that the maternity leave period continues for theperiod of 14 weeks from its commencement or until the birth of the child, if later. In any event, an employee may not work during the period of two weekscommencing with the date of childbirth.

5.

    In addition, sections 79 to 85 of the Act grant employees who have the generalright to maternity leave and who have been continuously employed for a period ofnot less than two years at the beginning of the 11th week before the expected week

of childbirth, the right to return to work with their employer at any time during theperiod of 29 weeks from the beginning of the week in which childbirth occurred.

6.

    According to section 164 of the Social Security Contributions and Benefits Act1992, pregnant employees who have worked for a continuous period of at least 26weeks ending with the week immediately preceding the 14th week before theexpected week of confinement and whose earnings exceed a certain level are to beentitled to receive from their employer payments known as 'Statutory MaternityPay‘ (hereinafter 'SMP‘) if they have ceased working, wholly or partly because ofpregnancy or confinement.

7.

    Section 165(1) of that Act provides that SMP is to be payable for a maximumperiod of 18 weeks. For women who have worked for a continuous period of atleast two years preceding the 14th week before the expected week of confinementfor an employer required to pay them SMP, section 166 specifies that SMP is tobe equivalent to nine-tenths of the woman's normal weekly earnings for the first sixweeks, and for the following 12 weeks is to be payable at a prescribed rate. At thematerial time that prescribed rate was £54.55. Women who do not satisfy thecondition relating to length of service receive the fixed rate for the whole 18 weeks.

8.

    Furthermore, sections 151 to 163 of the Social Security Contributions and BenefitsAct 1992 grant male and female employees who are incapable of work the right toreceive payments known as 'Statutory Sick Pay‘ (hereinafter 'SSP‘) from theiremployer for a period of up to 28 weeks, at the rate of £54.55 per week.

The dispute in the main proceedings

9.

    The six applicants in the main proceedings are all employees of the EOC ofchildbearing age. They have completed at least one year's service with theiremployer and are not employed on a casual, standby or short-notice appointment,nor are they employed on a fixed-term appointment of less than two years. Atleast three of them have taken maternity leave in the recent past.

10.

    The employment contract entered between EOC and its employees comprises, first,the Staff Handbook, which applies to all workers and, second, the MaternityScheme, which applies to female workers.

11.

    According to the Staff Handbook, staff who are unfit to work because of illness areentitled to their full salary for a maximum of six months in any 12 month period. Thereafter, they receive half pay up to a maximum of 12 months in any four-yearperiod. Another clause provides that any leave taken without pay reduces theannual leave entitlement by a proportion of the amount of unpaid leave taken.

12.

    The dispute in the main proceedings centres on the Maternity Scheme. Thepersons concerned applied to the Industrial Tribunal, Manchester, for a declaration

that certain conditions of the scheme are void or unenforceable in so far as theydiscriminate against female employees and are thus contrary to Article 119 of theTreaty or Directives 75/117, 76/207 or 92/85.

13.

    According to one of those clauses, any member of staff who has rendered at leastone year's paid service with the EOC and is not employed on a casual, standby orshort-notice appointment, or employed on a fixed-term appointment of less thantwo years is entitled to three months and one week's maternity leave on full pay forthe period of continuous absence before and after childbirth. However, in orderto benefit from that right, the employee must state that she intends to return towork in the EOC after childbirth and agree to be liable to repay any paymentmade during that period (excluding SMP to which she is entitled in any event),should she fail to return.

14.

    According to another contested clause of the Maternity Scheme, a member of staffwho is entitled to paid maternity leave may also qualify for supplementary unpaidmaternity leave provided, inter alia, that the total of those two periods of leave donot exceed 52 weeks.

15.

    Furthermore, the Maternity Scheme provides that if a member of staff specifiesthat she wishes to begin her maternity leave during the six weeks before theexpected week of childbirth, and is absent on account of a pregnancy-relatedsickness immediately before the date on which she asked to begin her maternityleave and childbirth occurs during that period of absence, the date on which paidmaternity leave commences can be brought forward to whichever is the later of thesixth week before the expected week of childbirth and the beginning of the periodof absence on account of sickness.

16.

    Furthermore, according to the Maternity Scheme, paid sick leave is not grantedonce paid maternity leave has begun or during a period of supplementary unpaidmaternity leave. There may, however, be an entitlement to SSP during unpaidmaternity leave. Where a member of staff provides at least three weeksnotification of her intention to return to work on a specified date, she is entitledto paid sick leave from that date. Paid sick leave following childbirth terminatesthe maternity leave and the supplementary unpaid maternity leave arrangements.

17.

    Finally, the Maternity Scheme states that members of staff who are not entitled topaid leave of absence retain their contractual rights and benefits, exceptremuneration, during the first 14 weeks of leave. In particular, annual leavecontinues to accrue. The period of absence only accrues for pension purposes ifthe employee is in receipt of SMP.

18.

    The national court points out that, pursuant to the foregoing provisions, employeeson any form of paid leave, apart from paid maternity leave, including sick leave andpaid special leave, are not required to agree to repay any part of their salary if they

do not return to work after the period of leave. Furthermore, it is agreed thatsubstantially more women employees than men employees take periods of unpaidleave in the course of their careers, largely because they take supplementarymaternity leave.

19.

    The Industrial Tribunal, Manchester, had doubts as to the compatibility of suchprovisions with Community law and decided to stay proceedings in order to referthe following questions to the Court for a preliminary ruling:

'In circumstances such as those of the present case, do any of the following mattersinfringe the prohibition of unfair and/or unfavourable treatment of women becauseof pregnancy, childbirth, maternity and/or sickness in relation thereto under EC law(in particular Article 119 of the Treaty of Rome and/or Council Directive75/117/EEC and/or Council Directive 76/207/EEC and/or Council Directive92/85/EEC):

(1)    A condition that maternity pay, beyond the Statutory Maternity Pay, is paidonly if the woman states that she intends to return to work and agrees tobe liable to repay such maternity pay if she does not return to work for onemonth on the conclusion of maternity leave.

(2)    A condition that where a woman, who is absent on paid sick leave with apregnancy related illness, gives birth during such absence, her maternityleave may be backdated to the later date of either six weeks before theexpected week of childbirth or when the sickness leave began.

(3)    A prohibition on a woman, who is unfit for work for any reason whilst onmaternity leave, from taking paid sick leave, unless she elects to return towork and terminate her maternity leave.

(4)    A condition limiting the time during which annual leave accrues to thestatutory minimum period of 14 weeks' maternity leave and accordinglyexcluding any other period of maternity leave.

(5)    A condition limiting the time in which pensionable service accrues duringmaternity leave to when the woman is in receipt of contractual or statutorymaternity pay and accordingly excluding any period of unpaid maternityleave?‘

The Community legislation

20.

    Article 119 of the Treaty provides that Member States are required to ensure andto maintain 'the application of the principle that men and women should receiveequal pay for equal work‘.

21.

    According to Article 1 of Directive 75/117, the principle of equal pay laid down inArticle 119 of the Treaty is intended to eliminate, for the same work or for workto which equal value is attributed, all discrimination on grounds of sex with regardto all aspects and conditions of remuneration.

22.

    According to Article 1(1) thereof, Directive 76/207 is intended 'to put into effectin the Member States the principle of equal treatment for men and women asregards access to employment, including promotion, and to vocational training andas regards working conditions‘.

23.

    Article 2(1) of that directive provides:

'For the purposes of the following provisions, the principle of equal treatment shallmean that there shall be no discrimination whatsoever on grounds of sex eitherdirectly or indirectly by reference in particular to marital or family status.‘

24.

    However, according to Article 2(3), Directive 76/207 is 'without prejudice toprovisions concerning the protection of women, particularly as regards pregnancyand maternity‘.

25.

    Article 5(1) of that directive provides:

'Application of the principle of equal treatment with regard to working conditions,including the conditions governing dismissal, means that men and women shall beguaranteed the same conditions without discrimination on grounds of sex.‘

26.

    As regards Directive 92/85, Article 8 of that directive, concerning maternity leave,provides:

'1.    Member States shall take the necessary measures to ensure that workerswithin the meaning of Article 2 are entitled to a continuous period of maternityleave of at least 14 weeks allocated before and/or after confinement in accordancewith national legislation and/or practice.

2.    The maternity leave stipulated in paragraph 1 must include compulsorymaternity leave of at least two weeks allocated before and/or after confinement inaccordance with national legislation and/or practice.‘

27.

    As regards employment rights, Article 11 of Directive 92/85 states:

'In order to guarantee workers within the meaning of Article 2 the exercise of theirhealth and safety protection rights as recognised in this Article, it shall be providedthat:

...

(2)    in the case referred to in Article 8, the following must be ensured:

    (a)    the rights connected with the employment contract of workers withinthe meaning of Article 2, other than those referred to in point (b)below;

    (b)    maintenance of a payment to, and/or entitlement to an adequateallowance for, workers within the meaning of Article 2;

(3)    the allowance referred to in point 2(b) shall be deemed adequate if itguarantees income at least equivalent to that which the worker concernedwould receive in the event of a break in her activities on grounds connectedwith her state of health, subject to any ceiling laid down under nationallegislation;

(4)    Member States may make entitlement to pay or the allowance referred toin points 1 and 2(b) conditional upon the worker concerned fulfilling theconditions of eligibility for such benefits laid down under national legislation.

These conditions may under no circumstances provide for periods of previousemployment in excess of 12 months immediately prior to the presumed date ofconfinement.‘

The first question

28.

    By its first question, the national court essentially asks whether Article 119 of theTreaty, as given specific expression by Directive 75/117 and Directives 76/207 or92/85, precludes a clause in an employment contract which makes the payment,during the period of maternity leave referred to by Article 8 of Directive 92/85, ofpay higher than the statutory payments in respect of maternity leave conditional onthe woman's undertaking to return to work after the birth of the child for at leastone month, failing which she is required to repay the difference between theamount of the pay she will have received during the period of maternity leave, onthe one hand, and the amount of those payments, on the other.

29.

    As regards, first, Directive 92/85, the Commission submits that Article 11(2)(b) and(3) requires the payment to a worker on maternity leave of an amount at leastequivalent to that which that woman would receive under her employment contractif she were on sick leave. Where, as in this case, the employer has undertaken topay workers on sick leave their full salary, women on maternity leave should, inaccordance with the aforementioned provisions of the directive, receive anequivalent income. In those circumstances, it would be inconsistent with Article 11of Directive 92/85 if female workers were required to repay the difference betweenthe full salary they received from their employer during their maternity leave and

the payments to which they are entitled during maternity leave under nationallegislation, in the event that they did not return to work after childbirth.

30.

    In that respect, it should be noted that it was in view of the risk that the provisionsrelating to maternity leave would be ineffective if rights connected with theemployment contract were not maintained, that the Community legislatureprovided, in Article 11(2)(b) of Directive 92/85, that 'maintenance of a paymentto, and/or entitlement to an adequate allowance‘ for workers to whom the directiveapplies must be ensured in the case of the maternity leave referred to in Article 8.

31.

    The concept of pay used in Article 11 of that directive, like the definition in thesecond paragraph of Article 119 of the Treaty, encompasses the consideration paiddirectly or indirectly by the employer during the worker's maternity leave in respectof her employment (see Case C-342/93 Gillespie and Others [1996] ECR I-475,paragraph 12). By contrast, the concept of allowance to which that provision alsorefers includes all income received by the worker during her maternity leave whichis not paid to her by her employer pursuant to the employment relationship.

32.

    According to Article 11(3) of Directive 92/85, the allowance 'shall be deemedadequate if it guarantees income at least equivalent to that which the workerconcerned would receive in the event of a break in her activities on groundsconnected with her state of health, subject to any ceiling laid down under nationallegislation‘. This is intended to ensure that, during her maternity leave, the workerreceives an income at least equivalent to the sickness allowance provided for bynational social security legislation in the event of a break in her activities on healthgrounds.

33.

    Female workers must be guaranteed an income of that level during their maternityleave, irrespective of whether, in accordance with Article 11(2)(b) of Directive92/85, it is paid in the form of an allowance, pay or a combination of the two.

34.

    Although the wording of Article 11 refers only to the adequate nature of theallowance, the income guaranteed to female workers during maternity leave mustnone the less also be adequate within the meaning of Article 11(3) of Directive92/85 if it is paid in the form of pay or in conjunction with an allowance, as thecase may be.

35.

    However, although Article 11(2)(b) and (3) requires the female worker to receive,during the period of maternity leave referred to in Article 8, income at leastequivalent to the sickness allowance provided for under national social securitylegislation in the event of a break in her activities on health grounds, it is notintended to guarantee her any higher income which the employer may haveundertaken to pay her, under the employment contract, should she be on sickleave.

36.

    It follows that a clause in an employment contract according to which a worker whodoes not return to work after childbirth is required to repay the difference betweenthe pay received by her during her maternity leave and the statutory payments towhich she was entitled in respect of maternity leave is compatible with Article11(2)(b) and (3) of Directive 92/85 in so far as the level of those payments is notlower than the income which the worker concerned would receive, under therelevant national social security legislation, in the event of a break in her activitieson grounds connected with her state of health.

37.

    Next, as regards Article 119 of the Treaty, as given specific expression by Directive75/117 and Directive 76/207, the applicants in the main proceedings submit that therequirement that a woman must repay the contractual pay received by her duringmaternity leave, in so far as it exceeds SMP, if she does not return to work afterchildbirth constitutes discrimination against a woman for reasons of pregnancy, andis therefore contrary to the principle of equal pay. For other forms of paid leave,such as sick leave, workers in general are entitled to the agreed salary withouthaving to undertake to return to work at the end of their leave.

38.

    Since the consideration paid by an employer under legislation or an employmentcontract to a woman on maternity leave is based on the employment relationship,it constitutes pay within the meaning of Article 119 of the Treaty and Article 1 ofDirective 75/117 (see the judgment in Gillespie and Others, cited above, paragraph14). It therefore cannot also fall within the scope of Directive 76/207.

39.

    Furthermore, it is settled case-law that discrimination involves the application ofdifferent rules to comparable situations or the application of the same rule todifferent situations (see the judgment in Gillespie and Others, cited above,paragraph 16, and Case C-279/93 Schumacker [1995] ECR I-225, paragraph 30).

40.

    As the Community legislature acknowledged when adopting Directive 92/85,pregnant workers and workers who have recently given birth or who arebreastfeeding are in an especially vulnerable situation which makes it necessary forthe right to maternity leave to be granted to them but which, particularly duringthat leave, cannot be compared to that of a man or a woman on sick leave.

41.

    The maternity leave granted to a worker is intended, first, to protect a woman'sbiological condition during and after pregnancy and, second, to protect the specialrelationship between a woman and her child over the period which followspregnancy and childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph25, and Case C-136/95 Thibault [1998] ECR I-2011, paragraph 25).

42.

    A clause in an employment contract which makes the application of a morefavourable set of rules than that prescribed by national legislation conditional onthe pregnant woman, unlike any worker on sick leave, returning to work afterchildbirth, failing which she must repay the contractual maternity pay in so far asit exceeds the level of the statutory payments in respect of that leave, therefore

does not constitute discrimination on grounds of sex for the purposes of Article 119of the Treaty and Article 1 of Directive 75/117.

43.

    However, the level of those payments must satisfy the requirements laid down inArticle 11(2)(b) and (3) of Directive 92/85.

44.

    In view of the foregoing, the answer to the first question must be that Article 119of the Treaty, Article 1 of Directive 75/117 and Article 11 of Directive 92/85 do notpreclude a clause in an employment contract which makes the payment, during theperiod of maternity leave referred to by Article 8 of Directive 92/85, of pay higherthan the statutory payments in respect of maternity leave conditional on theworker's undertaking to return to work after the birth of the child for at least onemonth, failing which she is required to repay the difference between the amountof the pay she will have received during the period of maternity leave, on the onehand, and the amount of those payments, on the other.

The second question

45.

    By its second question, the national court essentially asks whether Article 119 of theTreaty, as given specific expression by Directive 75/117 and Directives 76/207 or92/85, precludes a clause in an employment contract from requiring an employeewho has expressed her intention to commence her maternity leave during the sixweeks preceding the expected week of childbirth, and is on sick leave with apregnancy-related illness immediately before that date and gives birth during theperiod of sick leave, to bring forward the date on which her paid maternity leavecommences either to the beginning of the sixth week preceding the expected weekof childbirth or to the beginning of the period of sick leave, whichever is the later.

46.

    The applicants in the main proceedings submit that such a clause constitutesdiscrimination against women in so far as, unlike any other worker who is sick, afemale worker who is unfit for work is not able to exercise her contractual right tounconditional paid sick leave if her illness is pregnancy-related and she gives birthwhile on sick leave. The female worker is thus required to take paid maternityleave on less favourable terms and, in particular, to repay a part of the salaryreceived during that period if she does not return to work after the birth of thechild.

47.

    It should be noted at the outset that, in so far as it concerns the determination ofthe beginning of the period of maternity leave, the question falls within the scopeof Directive 76/207, in particular Article 5(1) thereof on working conditions, andnot Article 119 of the Treaty or Directive 75/117.

48.

    Next, the contested clause applies to the case of a pregnant employee who hasexpressed her wish to commence her maternity leave during the six weekspreceding the expected week of childbirth.

49.

    In that respect, although Article 8 of Directive 92/85 provides for a continuousperiod of maternity leave of at least 14 weeks, including compulsory maternity leaveof at least two weeks, it none the less leaves it open to the Member States todetermine the date on which maternity leave is to commence.

50.

    Furthermore, pursuant to Article 2(3) of Directive 76/207, it is for every MemberState, within the limits laid down in Article 8 of Directive 92/85, to fix periods ofmaternity leave so as to enable female workers to be absent during the period inwhich the disorders inherent in pregnancy and confinement occur (Case C-179/88Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 15).

51.

    National legislation may therefore, as here, provide that the period of maternityleave commences with the date notified by the person concerned to her employeras the date on which she intends to commence her period of absence, or the firstday after the beginning of the sixth week preceding the expected week of childbirthduring which the employee is wholly or partly absent because of pregnancy, shouldthat day fall on an earlier date.

52.

    The clause to which the second question relates merely reflects the choice madein such national legislation.

53.

    Furthermore, for the reasons described at paragraphs 42 and 43 above, therequirement that a female worker on maternity leave undertake to repay the payreceived under her contract during her maternity leave, in so far as it exceeds thelevel of the payments provided for by national legislation during that leave, if shefails to return to work after childbirth cannot constitute unfavourable treatment ofthat worker.

54.

    The answer to the second question must therefore be that Article 8 of Directive92/85 and Article 5(1) of Directive 76/207 do not preclude a clause in anemployment contract from requiring an employee who has expressed her intentionto commence her maternity leave during the six weeks preceding the expectedweek of childbirth, and is on sick leave with a pregnancy-related illness immediatelybefore that date and gives birth during the period of sick leave, to bring forwardthe date on which her paid maternity leave commences either to the beginning ofthe sixth week preceding the expected week of childbirth or to the beginning of theperiod of sick leave, whichever is the later.

The third question

55.

    By its third question, the national court asks whether Article 119 of the Treaty, asgiven specific expression by Directive 75/117 and Directives 76/207 and 92/85,precludes a clause in an employment contract from prohibiting a woman fromtaking sick leave during the minimum period of 14 weeks' maternity leave to whicha female worker is entitled pursuant to Article 8 of Directive 92/85 or anysupplementary period of maternity leave granted to her by the employer, unless sheelects to return to work and thus terminate her maternity leave.

56.

    First, as regards Directive 92/85, a distinction must be drawn between, on the onehand, the period of maternity leave of at least 14 weeks referred to by Article 8 ofthat directive and, on the other, any supplementary leave which, as in the presentcase, the employer is prepared to offer pregnant workers, and workers who haverecently given birth or are breastfeeding.

57.

    In so far as the clause at issue prohibits a woman from taking sick leave during theperiod of maternity leave referred to by Article 8 of Directive 92/85 — which, in theUnited Kingdom is, in principle, 14 weeks — unless she terminates that leave, itmust be examined in the light of that provision.

58.

    In that respect, although the Member States are required, pursuant to Article 8 ofthe aforesaid directive, to take the necessary measures to ensure that workers areentitled to a period of maternity leave of at least 14 weeks, those workers maywaive that right, with the exception of the two weeks compulsory maternity leaveprovided for in paragraph 2, which, in the United Kingdom, commence on the dayon which the child is born.

59.

    Furthermore, Article 8 of Directive 92/85 provides that the period of maternityleave provided for therein must be at least 14 continuous weeks, allocated beforeand/or after confinement. It follows from the purpose of that provision that thewoman cannot interrupt or be required to interrupt her maternity leave and returnto work, and complete the remaining period of maternity leave later.

60.

    In contrast, if a woman becomes ill during the period of maternity leave referredto by Article 8 of Directive 92/85 and places herself under the sick leavearrangements, and that sick leave ends before the expiry of the period of maternityleave, she cannot be deprived of the right to continued enjoyment, after that date,of the maternity leave provided for by the aforementioned provision until the expiryof the minimum period of 14 weeks, that period being calculated from the date onwhich the maternity leave commenced.

61.

    Any other interpretation would compromise the purpose of maternity leave, in sofar as that leave is intended to protect not only the woman's biological conditionbut also the special relationship between a woman and her child over the periodwhich follows pregnancy and childbirth. The continuous period of maternity leaveof at least 14 weeks, allocated before and/or after confinement, is intended in

particular to provide the woman with the guarantee that she can look after hernew-born baby in the weeks following childbirth. Except in exceptionalcircumstances, she cannot therefore be deprived of that guarantee for reasons ofhealth.

62.

    In so far as it prohibits a woman from taking sick leave during any leave grantedby the employer in addition to the period of maternity leave provided for by Article8 of Directive 92/85, unless she terminates that leave, such a clause does not fallwithin the scope of that provision.

63.

    The third question also seeks to ascertain whether the clause at issue constitutesdiscrimination as regards the right to sick leave and, therefore, falls within thescope of Directive 76/207, in particular Article 5(1) thereof, concerning conditionsof employment. Article 119 of the Treaty and Directive 75/117 are therefore notin point. In view of the foregoing, the third question need be examined only in sofar as the clause of the employment contract referred to therein applies to thesupplementary period of maternity leave granted by the employer to femaleworkers.

64.

    In that respect, the principle of non-discrimination laid down in Article 5 ofDirective 76/207 does not require a woman to be able to exercise simultaneouslyboth the right to supplementary maternity leave granted to her by the employerand the right to sick leave.

65.

    Consequently, in order for a woman on maternity leave to qualify for sick leave,she may be required to terminate the period of supplementary maternity leavegranted to her by the employer.

66.

    The answer must therefore be that a clause in an employment contract whichprohibits a woman from taking sick leave during the minimum period of 14 weeks'maternity leave to which a female worker is entitled pursuant to Article 8(1) ofDirective 92/85, unless she elects to return to work and thus terminate hermaternity leave, is not compatible with Directive 92/85. By contrast, a clause in anemployment contract which prohibits a woman from taking sick leave during aperiod of supplementary maternity leave granted to her by the employer, unless sheelects to return to work and thus terminate her maternity leave, is compatible withDirectives 76/207 and 92/85.

The fourth question

67.

    By its fourth question, the national court essentially seeks to ascertain whetherArticle 119 of the Treaty, as given specific expression by Directive 75/117 andDirectives 76/207 or 92/85, precludes a clause in an employment contract fromlimiting the period during which annual leave accrues to the minimum period of 14weeks' maternity leave to which female workers are entitled under Article 8 of

Directive 92/85 and from providing that annual leave ceases to accrue during anyperiod of supplementary maternity leave granted to them by their employer.

68.

    First, the accrual of annual leave constitutes a right connected with the employmentcontract of workers for the purposes of Article 11(2)(a) of Directive 92/85.

69.

    It follows from that provision that such a right need only be ensured during theperiod of maternity leave of at least 14 weeks to which workers are entitled underArticle 8 of Directive 92/85.

70.

    Here, the duration of that period of leave is, in principle, fixed at 14 weeks in theUnited Kingdom.

71.

    Consequently, the directive does not preclude a clause, such as that to which thequestion referred to the Court relates, according to which annual leave ceases toaccrue during any period of supplementary maternity leave granted by employersto pregnant workers or workers who have recently given birth or who arebreastfeeding.

72.

    Second, the particular rules concerning the accrual of annual leave constitute anintegral part of working conditions within the meaning of Article 5(1) of Directive76/207 and cannot therefore also fall within the scope of Article 119 of the Treatyor Directive 75/117.

73.

    In that respect, the applicants point out that, according to the EOC's StaffHandbook, if unpaid leave is taken (sick leave, special leave or supplementarymaternity leave), the annual leave entitlement is reduced by a proportion of theamount of unpaid leave taken. However, since a substantially greater proportionof women than men take periods of unpaid leave because they take supplementarymaternity leave, that rule — which is ostensibly gender-neutral — constitutes indirectdiscrimination against women, contrary to Article 5(1) of Directive 76/207.

74.

    First, as is clear from the documents before the Court, all employees of EOC whotake unpaid leave cease to accrue annual leave during that period. According tothe EOC Staff Handbook, unpaid leave includes both sick leave and special leave,which are available to any worker, as well as supplementary maternity leavegranted by EOC in addition to the 14 weeks' maternity leave provided for by theEmployment Rights Act 1996.

75.

    Such a clause therefore does not constitute direct discrimination since the accrualof annual leave during the period of unpaid leave is interrupted for both men andfor women who take unpaid leave. It is therefore necessary to consider whethersuch a clause can constitute indirect discrimination.

76.

    The Court has consistently held that indirect discrimination arises where a nationalmeasure, albeit formulated in neutral terms, works to the disadvantage of far morewomen than men (see, in particular, Case C-1/95 Gerster [1997] ECR I-5253,paragraph 30, and Case C-100/95 Kording [1997] ECR I-5289, paragraph 16).

77.

    In that respect, it should be noted that, as the national court points out,substantially more women than men take periods of unpaid leave during theircareer because they take supplementary maternity leave, so that, in practice, theclause at issue applies to a greater percentage of women than men.

78.

    However, the fact that such a clause applies more frequently to women results fromthe exercise of the right to unpaid maternity leave granted to them by theiremployers in addition to the period of protection guaranteed by Article 8 ofDirective 92/85.

79.

    Female workers who exercise that right subject to the condition that annual leaveceases to accrue during the period of unpaid leave cannot be regarded as at adisadvantage compared to male workers. The supplementary unpaid maternityleave constitutes a special advantage, over and above the protection provided forby Directive 92/85 and is available only to women, so that the fact that annual leaveceases to accrue during that period of leave cannot amount to less favourabletreatment of women.

80.

    The answer must therefore be that Directives 92/85 and 76/207 do not preclude aclause in an employment contract from limiting the period during which annualleave accrues to the minimum period of 14 weeks' maternity leave to which femaleworkers are entitled under Article 8 of Directive 92/85 and from providing thatannual leave ceases to accrue during any period of supplementary maternity leavegranted to them by their employer.

The fifth question

81.

    It appears from the documents before the Court that, by its fifth question, thenational court essentially seeks to ascertain whether Article 119 of the Treaty, asgiven specific expression by Directive 75/117 and Directives 92/85 or 76/207,precludes a clause in an employment contract from limiting, in the context of anoccupational scheme wholly financed by the employer, the accrual of pension rightsduring maternity leave to the period during which the woman receives the payprovided for by that employment contract or national legislation.

82.

    The accrual of pension rights in the context of an occupational scheme whollyfinanced by the employer constitutes one of the rights connected with theemployment contracts of the workers for the purposes of Article 11(2)(a) ofDirective 92/85.

83.

    As stated at paragraph 69 above, in accordance with that provision, such rightsmust be ensured during the period of maternity leave of at least 14 weeks to whichfemale workers are entitled under Article 8 of Directive 92/85.

84.

    Although, in accordance with Article 11(4) of Directive 92/85, it is open to MemberStates to make entitlement to pay or the adequate allowance referred to in Article11(2)(b) conditional upon the worker concerned fulfilling the conditions ofeligibility for such benefits laid down under national legislation, no such possibilityexists in respect of rights connected with the employment contract within themeaning of Article 11(2)(a).

85.

    The accrual of pension rights under an occupational scheme during the period ofmaternity leave referred to by Article 8 of Directive 92/85 cannot therefore bemade conditional upon the woman's receiving the pay provided for by heremployment contract or SMP during that period.

86.

    Since the clause to which the fifth question relates is contrary to Directive 92/85,it is not necessary to interpret Article 119 of the Treaty, as given specific expressionby Directive 75/117 and Directive 76/207.

87.

    The answer to the fifth question must therefore be that Directive 92/85 precludesa clause in an employment contract from limiting, in the context of an occupationalscheme wholly financed by the employer, the accrual of pension rights during theperiod of maternity leave referred to by Article 8 of that directive to the periodduring which the woman receives the pay provided for by that contract or nationallegislation.

Costs

88.

    The costs incurred by the United Kingdom Government, the Irish Government andthe Austrian Government, and by the Commission, which have submittedobservations to the Court, are not recoverable. Since these proceedings are, for theparties to the main proceedings, a step in the proceedings pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Industrial Tribunal, Manchester, byorder of 15 October 1996, hereby rules:

1.    Article 119 of the EC Treaty, Article 1 of Council Directive 75/117/EEC of10 February 1975 on the approximation of the laws of the Member Statesrelating to the application of the principle of equal pay for men and womenand Article 11 of Council Directive 92/85/EEC of 19 October 1992 on theintroduction of measures to encourage improvements in the safety andhealth at work of pregnant workers and workers who have recently givenbirth or are breastfeeding (tenth individual Directive within the meaningof Article 16(1) of Council Directive 89/391/EEC) do not preclude a clausein an employment contract which makes the payment, during the period ofmaternity leave referred to by Article 8 of Directive 92/85, of pay higherthan the statutory payments in respect of maternity leave conditional on theworker's undertaking to return to work after the birth of the child for atleast one month, failing which she is required to repay the differencebetween the amount of the pay she will have received during the period ofmaternity leave, on the one hand, and the amount of those payments, onthe other.

2.    Article 8 of Directive 92/85 and Article 5(1) of Council Directive76/207/EEC of 9 February 1976 on the implementation of the principle ofequal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions do not precludea clause in an employment contract from requiring an employee who hasexpressed her intention to commence her maternity leave during the sixweeks preceding the expected week of childbirth, and is on sick leave witha pregnancy-related illness immediately before that date and gives birthduring the period of sick leave, to bring forward the date on which her paidmaternity leave commences either to the beginning of the sixth weekpreceding the expected week of childbirth or to the beginning of the periodof sick leave, whichever is the later.

3.    A clause in an employment contract which prohibits a woman from takingsick leave during the minimum period of 14 weeks' maternity leave towhich a female worker is entitled pursuant to Article 8(1) of Directive92/85, unless she elects to return to work and thus terminate her maternityleave, is not compatible with Directive 92/85. By contrast, a clause in anemployment contract which prohibits a woman from taking sick leaveduring a period of supplementary maternity leave granted to her by theemployer, unless she elects to return to work and thus terminate hermaternity leave, is compatible with Directives 76/207 and 92/85.

4.    Directives 92/85 and 76/207 do not preclude a clause in an employmentcontract from limiting the period during which annual leave accrues to theminimum period of 14 weeks' maternity leave to which female workers areentitled under Article 8 of Directive 92/85 and from providing that annualleave ceases to accrue during any period of supplementary maternity leavegranted to them by their employer.

5.    Directive 92/85 precludes a clause in an employment contract from limiting,in the context of an occupational scheme wholly financed by the employer,the accrual of pension rights during the period of maternity leave referredto by Article 8 of that directive to the period during which the womanreceives the pay provided for by that contract or national legislation.

Rodríguez Iglesias        Kapteyn            Puissochet Jann Gulmann                Murray            Edward Ragnemalm Sevón Wathelet Schintgen

Delivered in open court in Luxembourg on 27 October 1998.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: English.