The claimant female employee was, for almost the entire duration of her pregnancy, on sick leave on medical advice by reason of a pathological condition linked to her pregnancy. After her maternity leave had ended, she was still unable to work on medical grounds and took further sick leave. She received full pay during her maternity leave but half pay for part of her sick leave. The sick-leave scheme of her employer did not distinguish between pregnancy-related illnesses and other forms of illness; thus, for remuneration purposes, she was treated in the same way as a sick man who was absent from work for the same number of days would have been treated. Ms McKenna claimed that she had suffered sex discrimination inasmuch as her pregnancy-related illness had been treated in the same way as a non pregnancy-related illness.
Held: The Court disagreed. The fact that pregnancy-related illnesses are sui generis (affecting only female employees) does not mean that ‘a female worker who is absent by reason of a pregnancy-related illness is entitled to the maintenance of full pay, whereas a worker absent by reason of an illness unrelated to pregnancy does not have such a right’. (17) The Court then compared a female employee who cannot work on medical grounds related to pregnancy to a male employee who cannot work on other medical grounds and concluded: ‘Community law does not require the maintenance of full pay for a female worker who is absent during her pregnancy by reason of an illness related to that pregnancy. During an absence resulting from such an illness, a female worker may thus suffer a reduction in her pay, provided that she is treated in the same way as a male worker who is absent on the grounds of illness, and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers’. Equal pay for men and women – Illness arising prior to maternity leave – Pregnancy-related illness – Person subject to the general sick-leave scheme- Effect on pay – Absence offset against the maximum total number of days of paid sick leave over a specified period.
Judges:
CWA Timmermans, P
Citations:
C-191/03, [2005] EUECJ C-191/03, [2006] All ER (EC) 455, [2006] CEC 69, [2005] ECR I-7631, [2006] 1 CMLR 6, [2005] IRLR 895, [2006] ICR 477
Links:
European, Discrimination
Updated: 03 July 2022; Ref: scu.229977