The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused on the basis that she was not a ‘worker’, and she now appealed.
Held: Neither side of the argument was acte clair, and accordingly the case was referred to the European Court of Justice.
Lady Hale said: ‘Pregnancy is not just a lifestyle choice. Equal treatment encompasses the reasonable response of a working woman to the physical demands and limitations of late pregnancy and childbirth. UK law gives sensible recognition to these, not only for the sake of the mother but also for the sake of her child, by not requiring that she seek or be available for work from 11 weeks before the expected date of confinement until 15 weeks after her pregnancy has ended (whether with a live or a still birth). Excluding a woman who makes that choice from the right of residence which she would have retained had she not become pregnant is, it is argued, direct discrimination on grounds of sex.’
Judges:
Lord Neuberger, President, Lady Hale, Lord Mance, Lord Kerr, Lord Reed
Citations:
[2012] UKSC 49, UKSC 2011/0176
Links:
Bailii, Bailii Summary, SC Summary, SC
Statutes:
Directive 2004/38/EC of the European Parliament and Council on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States
Jurisdiction:
England and Wales
Citing:
Appeal from – JS v Secretary of State for Work and Pensions CA 13-Jul-2011
The claimant, a French woman and qualified teacher, now appealed against rejection of her claim for income support, saying that the defendant had failed to comply with the obligations of the European Citizens Directive designed to allow European . .
Cited – DM Levin v Staatssecretaris Van Justitie ECJ 23-Mar-1982
ECJ The concepts of ‘worker’ and ‘activity as an employed person’ define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.
Cited – Kempf v Staatssecretaris Van Justitie ECJ 3-Jun-1986
The term ‘worker’ when used within community legislation should not be interpreted restrictively. . .
Cited – Sylvie Lair v Universitat Hannover ECJ 21-Jun-1988
European law draws a distinction between member state nationals who have not yet entered into an employment relationship in the host member state where they are looking for work and those who are already working in that state or who, having worked . .
Cited – Regina v Immigration Appeal Tribunal, ex parte Antonissen ECJ 26-Feb-1991
ECJ The free movement of workers enshrined in Article 48 of the Treaty entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the . .
Cited – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – Regina v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department ECJ 7-Jul-1992
ECJ The provisions of the Treaty relating to the free movement of persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community and preclude . .
Cited – Ninni-Orasche v Bundesminister fur Wissenschaft, Verkehr und Kunst ECJ 6-Nov-2003
ECJ Freedom of movement for workers – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of worker – Contract of employment of a short term fixed in advance – Retention of the status of . .
Cited – Georgios Orfanopoulos and Others v Land Baden-Wurttemberg. ECJ 29-Apr-2004
When considering a claim to resist deportation ‘the requirement of the existence of a present threat must, as a general rule, be satisfied at the time of the expulsion.’
Europa On the interpretation of . .
Cited – Metock And Others v Minister for Justice, Equality and Law Reform ECJ 25-Jul-2008
ECJ Directive 2004/38/EC – Right of Union citizens and their family members to move and reside freely in the territory of a Member State – Family members who are nationals of non-member countries – Nationals of . .
At Upper Tribunal – Secretary of State for Work and Pensions v JS UTAA 7-May-2010
The claimant french woman had come to England, working as a teaching assistant. She set out to train as a teacher but became pregnant, and gave up work temporarily. She was refused Income Support. Her appeal was allowed, and the Secretary of State . .
Cited – Johnson v Chief Adjudication Officer ECJ 11-Jul-1991
ECJ 1. Article 2 of Council Directive 79/7/EEC, on the progressive implementation of the principle of equal treatment for men and women in matters of social security, must be interpreted as meaning that the . .
Cited – Patmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
Cited – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
Lists of cited by and citing cases may be incomplete.
European, Employment, Benefits
Updated: 06 November 2022; Ref: scu.465470
