Pregnancy and maternity
EC law has considered pregnancy and maternity as situations meriting special protection. Pregnancy and maternity were to be protected in terms of women receiving equal treatment by Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for women and men in terms of access to employment, vocational training and promotion, and working conditions.
However, treatment of women workers while pregnant, and during their maternity period, was the subject of litigation, as national courts and the European Court of Justice (ECJ) grappled with the extent to which their treatment (either in terms of specially favourable provisions or treatment ignoring their condition) constituted discrimination and violated the equal treatment requirement (eg, Dekker v. Stichting Vormingscentrum voor Jong Volwassenen Plus, Case C-177/88 ).
Many of these issues have been resolved with the adoption of the amending Council Directive 2002/73/EC. New Article 2(7) stipulates that, following maternity leave, a woman is entitled to return to her job or an equivalent post with no less favourable terms and conditions, and to benefit from any improvements in working conditions to which she is entitled during her leave. The directive aligns with Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave with respect to the introduction of measures to encourage improvements in the health and safety at work of pregnant workers and those who have recently given birth or are breastfeeding. It also legislates that, in Member States which recognise distinct rights to paternity and/or adoption leave, necessary measures should be taken to protect the affected working women and men against dismissal, and following their absence, they should return to their jobs or equivalent posts on equally favourable terms and conditions.
The specific risks posed to the health and safety of pregnant workers and mothers, and the steps taken to remove those risks to comply with statutory obligations and/or voluntary codes of conduct, was addressed by Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding.
The directive requires that the Commission ‘draws up guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered hazardous for the safety and health of workers’ in the conditions of pregnancy and maternity. It also requires that the employer ‘assess any risks to the safety or health and any possible effect on the pregnancy of breastfeeding of [such] workers [and] decide what measures should be taken’ ‘for all activities liable to involve a specific risk of exposure to the agents, processes or working conditions’ (Article 4(1)). If the results of the assessment reveal a risk, the employer ‘shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided’ (Article 5(1)). If this is not feasible or cannot reasonably be required, the worker is to be moved to another job (Article 5(2)). If that is not feasible or reasonable, the worker is to be granted leave ‘in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety and health’ (Article 5(3)).
The directive also provides for cases where exposure is to be completely prohibited: release from night work obligations and entitlement to time off for antenatal examinations.