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Facts
Under the terms of M’s employment contract she was entitled to be paid in full for up to 183 days’ sickness absence in a year, and then to be paid a further 183 days at half pay subject to a limit of 365 days in any four-year period.
M was signed off work as a result of a pregnancy-related illness for almost the entire duration of her pregnancy. Under the terms of the employer’s sick-pay scheme, M’s pay was eventually reduced to half pay. During her maternity leave she received full pay, but upon her return she was again signed off work sick and her pay was once more reduced to half pay. M alleged that she had been discriminated against because she had been treated in the same way as employees suffering from any other illness, maintaining that her pregnancy-related absence should not have been taken into account for the purposes of the sick-pay scheme.
Advocate General’s opinion
The Advocate General’s opinion last February was rather worrying as it expressed the view that it was contrary to the Equal Treatment Directive for a sick-leave scheme to treat workers suffering from a pregnancy-related illness and workers suffering from pathological illnesses in exactly the same way. This had serious implications for the administration of many occupational sick-pay schemes, with some arguing that an employee absent during pregnancy due to a pregnancy-related illness would be entitled to full pay because that would have been her entitlement if she had remained at work.
ECJ’s approach
Fortunately, the ECJ rejected this analysis. It ruled that it was not sex discrimination for a sick-leave scheme to treat all ill-health absences (regardless of their cause) in the same way for the purposes of reducing pay entitlement once absence exceeds a stipulated level:
‘… provided that the female worker is treated in the same way as a male worker who is absent on grounds of illness and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers.’
It also ruled that it was lawful for a sick-leave scheme to provide that absences on grounds of illness are to be offset against a maximum total number of days of paid sick leave to which a worker is entitled over a specified period, whether or not the illness is pregnancy-related. This was subject to the caveat that the effect of such an offsetting scheme must not be such that the female worker during subsequent ill-health absences:
‘… receives pay that is lower than the minimum amount to which she was entitled during the illness which arose whilst she was pregnant.’
Comment
In principle, this is welcome news for employers. However, there is still some uncertainty in relation to certain aspects of the judgment. One question that remains is what is the threshold below which payment cannot drop because it would ‘undermine the objective of protecting pregnant workers’? There is no English employment law requirement for a minimum payment (other than the national minimum wage (NMW)) to be made to pregnant workers who are not on active maternity leave.
Similarly, what is the ‘minimum amount to which a pregnant sick leaver is entitled’ during ill-health absence referred to in the ECJ’s judgment? Again, in the absence of any statutory maternity pay entitlement and any applicable statutory sick pay or NMW provisions, there is no minimum amount to which the employee is entitled, unless her ill-health absence falls within the four weeks before the expected date of childbirth triggering the commencement of her maternity leave.
It remains to be seen how the UK courts interpret this ECJ judgment. For the time being, however, employers can continue to apply their normal sick-pay policies and procedures to employees absent due to pregnancy-related illness.
It is, however, essential to ensure that such employees are not treated differently in any way, as this could lead to claims that they have been treated less favourably on the grounds of pregnancy. Practices such as conducting back-to-work interviews, contacting employees at home, and so on, should therefore all be consistent with written policy and day-to-day practice.
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