ECJ case may have major impact on sick leave schemes

In December 2004, a European Court of Justice (ECJ) Advocate-General issued an opinion on a pregnancy-related discrimination case referred by Ireland's Labour Court. The opinion states that treating pregnancy-related illness and other illness in the same way contravenes the EU equal treatment Directive. If the ECJ makes its ruling in line with this opinion, many employers across Europe could be forced to change their sick leave schemes to avoid discriminating against pregnant women.

A European Court of Justice (ECJ) Advocate-General, Philippe Léger, issued his opinion on 2 December 2004 in Case C-191/03, North Western Health Board v Margaret McKenna. His finding was that Ireland’s North Western Health Board (NWHB) had discriminated against one of its female employees by docking her wages after she took sick leave due to a pregnancy-related illness. The crux of the case was whether incapacity for work caused by a pregnancy-related illness and occurring during the period of pregnancy may, in accordance with EU law, be treated in the same way as incapacity for work caused by any other illness and be set against the number of days during which, under the sick leave scheme applicable in the case, employees are entitled to have their pay maintained in full, and then in part.

Opinion

The Advocate-General was of the view that treating pregnancy-related illness and other illness in the same way contravenes EU Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. He thus concluded that docking wages from a women experiencing pregnancy-related illness 'must be considered to constitute direct discrimination in contravention of the provisions of Article 2(1) and 5(1) of Directive 76/207'.

The Advocate-General concluded that: 'A sick leave scheme that treats in exactly the same way those employees who suffer from a pregnancy-related illness and those who are victims of any other illness, in that the periods of absence due to incapacity for work caused by a pregnancy-related illness and occurring during that pregnancy are set against entitlement to paid sick leave, falls within the ambit of Directive 76/207/EEC …' He found that such a scheme is contrary to the equal treatment Directive, adding that, 'it falls to the competent national authorities to take all the measures necessary to put an end to the discrimination entailed by such a scheme'.

Repercussions

The judges of the ECJ will now begin their deliberations on this case and a judgment is expected in the coming months. Advocate-General opinions offer guidance and are not binding on the ECJ (the task of the Advocate-General is to propose to the ECJ, in complete independence, a legal solution to the case concerned). Nevertheless, full ECJ judgments often - if not necessarily - follow the Advocate-General’s opinion. If the ECJ follows the Advocate-General's opinion in North Western Health Board v Margaret McKenna, this could have extensive repercussions for EU Member States, including Ireland.

With regard to the background to the case, Ms McKenna found that she was pregnant in January 2000. She was obliged to take sick leave on medical advice, on account of a pregnancy-related illness that lasted for nearly the whole term of her pregnancy. According to the order for reference to the ECJ, her absences from work during her pregnancy were due solely to that illness and a medical certificate has stated that she was unfit for work. As from 6 July 2000, because she had exhausted her right to full pay during sick leave, her pay was reduced to half-pay. From 3 September to 11 December 2000, she was on maternity leave and received her pay at the full rate. When the maternity leave expired, because she was still unfit for work on medical grounds, her pay was once more reduced by half.

In 2001, Ms McKenna took a case to Ireland’s Office of the Director of Equality Investigations (ODEI) (now known as the Equality Tribunal), arguing that she had been the victim of discrimination on grounds of sex in breach of Directive 76/207/EEC. In defence, the North Western Health Board argued that its actions were in accordance with its sick leave scheme, which stated that six months was the maximum period allowed for full pay during illness.

The ODEI backed Ms McKenna’s claim that pregnancy-related illness should not be subject to the same rules as other illnesses, because it affects women only. The Equality Officer concluded that, by treating the pregnancy-related illness as though it were any other illness, the employer had discriminated on grounds of sex.

The NWHB then appealed against the decision to Ireland's Labour Court. The Labour Court considered the existing case law on the subject, but, due to the complexities of the case, referred a number of questions to the ECJ for judgment.

Commentary

If the ECJ rules in line with the Advocate-General's opinion, this will constitute a landmark judgment in the area of pregnancy/sick leave. The implication would appear to be that many employers in Europe could be forced to alter their sick leave schemes to comply with the ruling. If not, employers could be susceptible to legal challenge from employees, in terms of claims of discrimination on pregnancy grounds. (Tony Dobbins, IRN)