DEE061

FULL RECOMMENDATION

AEE/01/17

DETERMINATIONNO.DEE061

SECTION 21, EMPLOYMENT EQUALITY ACT, 1977

PARTIES :

NORTH WESTERN HEALTH BOARD
(REPRESENTED BY HEALTH SERVICE EMPLOYERS' AGENCY)

- AND -

MARGARET MC KENNA
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr O'Neill

SUBJECT:
1. Appeal against Equality Officer's Recommendation DEC-E-2001/25.

BACKGROUND:

2. The worker's claim is that she was discriminated against by the Board contrary to the provisions of the Employment Equality Act, 1998, when her pay was reduced to half pay from the 6th of July, 2000, while absent on sick leave owing to a pregnancy related illness.

The Board is appealing against the Equality Officer's Decision in accordance with Section 83 of the Employment Equality Act, 1998. Labour Court hearings took place on the 7th of June, 2002, 10th February, 2006, and the 10th April, 2006. The following is the Court's determination:-

DETERMINATION:

This matter came before the Court by way of an appeal by the North Western Health Board against the Decision of the Equality Tribunal in a claim by Ms McKenna under the Employment Equality Act, 1998. Ms McKenna claimed before the Equality Tribunal that she had been discriminated against by the Health Board when she was placed on half-pay during a period in which she was on of sick leave arising from a pregnancy-related illness. The impugned reduction was made pursuant to the rules of the sick-leave scheme applicable to public servants which make no distinction between pregnancy-related illness and pathological illness.

The Equality Officer held with Ms McKenna. Her Decision was as follows:

I find that the respondent discriminated against the complainant contrary to the Equal Treatment Directive when the complainant’s pregnancy-related illness was treated as normal illness when applying the provisions of the sick leave scheme.

I find that the respondent discriminated against the complainant contrary to Article 141 and the Equal Pay Directive when her pay was reduced to half due to a pregnancy-related illness occurring during pregnancy which resulted in her being unfit for work.

In accordance with section 82 of the Employment Equality Act, 1998, I hereby order that the respondent:
- (i) amend the provisions of its sick leave scheme to have due regard to European Court of Justice jurisprudence in order that there is not any less favourable treatment as a result of pregnancy-related illness occurring during pregnancy;
  
  (ii)discount the complainant’s pregnancy-related illness resulting in incapacity for work for the purposes of the sick leave scheme and update all records accordingly;
  
  (iii) restore the complainant’s pay to the amount that would have been payable had her pregnancy related illness resulting in incapacity for work not been treated as normal sick leave and pay her the arrears due;
  
  (iv) pay the complainant £3,000 for the distress suffered as a result of the discrimination.
The Health Board appealed to this Court.

Having reviewed all of the submissions made to it, the Court came to the view that the outcome of the case depended on questions of Community law which the Court was unable to resolve. Accordingly, the Court decided to stay the proceedings and refer the following questions to the European Court of Justice for a preliminary ruling pursuant to Article 234 of the Treaty:

1. Does the operation of a sick leave scheme which treats employees suffering from pregnancy-related illnesses and pathological illness in an identical fashion come within the scope of Directive 76/207?2. If the answer to question 1 is in the affirmative, is it contrary to Directive 76/207 for an employer to offset against an employee’s total entitlement to benefit under an occupational sick-leave scheme, a period of absence from work due to incapacity caused by a pregnancy-related illness arising during pregnancy?3. If the answer to question 1 is in the affirmative, does Directive 76/207 require an employer to have in place special arrangements to cover absence from work due to incapacity caused by pregnancy-related illness arising during pregnancy?4. Does the operation of a sick leave scheme which treats employees suffering from pregnancy-related illness and pathological illness come within the scope of Article 141 of the EC Treaty and Directive 75/117.5. If the answer to question 4 is in the affirmative, is it contrary to Article 141 of the Treaty and Directive 75/117 for an employer to reduce a woman’s pay after she has been absent from work for a designated period where the absence is caused by incapacity due to a pregnancy-related illness arising during pregnancy in circumstances in which a non pregnant woman or a man absent from work for the same period as a result of incapacity due to purely pathological illness would suffer the same reduction.?
By Judgement delivered on 8th September 2005 (now reported at [2005] IRLR 895) the Court of Justice of the European Communities gave its preliminary ruling on the questions and held:

1. A sick leave scheme which treats female workers suffering from a pregnancy-related illness in the same way as other workers suffering from an illness that is unrelated to pregnancy is “pay” within the scope of Article 141 EC and the Equal Pay Directive.

2. Payment of wages to a worker in the event of illness falls within the concept of “pay” within the meaning of Article 141. The scheme in the present case defined the conditions governing maintenance of the worker’s pay in the event of absence on grounds of illness. It operated automatically on the basis of an arithmetical calculation of the days of absence on grounds of illness. The rules established this came within the scope of Article 141 and the Equal Pay Directive. Pay within the terms of Article 141 and the Equal Pay Directive cannot also come within the scope of the Equal Treatment Directive.

3. A rule of a sick leave scheme which provides for a reduction in pay where the absence exceeds a certain duration as regards both female workers absent prior to maternity leave by reason of an illness related to their pregnancy and male workers absent by reason of any other illness does not constitute discrimination on grounds of sex contrary to Article 141 and the Equal Pay Directive, so long as the amount of payment made is not so low as to undermine the objective of protecting pregnant workers.

4. 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. There is no principle of Community law that women should continue to receive full pay during maternity leave, provided that the amount of pay is not so low as to undermine the Community law objective of protecting female workers, in particular before giving birth. If a rule providing, within those limits, for a reduction in pay to a female worker during her maternity leave does not constitute discrimination based on sex, a rule providing, within the same limits, for a reduction in pay to that female worker who is absent during her pregnancy by reason of an illness related to that pregnancy also cannot be regarded as constituting discrimination based on sex.

5. Nor is it contrary to Article 141 and the Equal Pay Directive for a sick leave scheme to treat all illnesses in an identical manner for the purpose of determining the maximum total number of days of paid sick leave to which a worker is entitled during a given period, and not to take any account of the special nature of pregnancy-related illnesses. However, the offsetting of absences during pregnancy on grounds of a pregnancy-related illness against a maximum total number of days of paid sick leave to which a worker is entitled over a specified period cannot have the effect that, during the absence affected by that offsetting after the maternity leave, the female worker receives pay that is below the minimum amount to which she was entitled over the course of the illness which arose during her pregnancy. Special provisions must be implemented in order to prevent such an effect.

Having received the Judgement the Court determines as follows:

Determination.

1. The Decision of the Equality Officer is set aside and substituted with an Order in the following terms:

Article 141 EC, Directive 75/117 and the Employment Equality Act, 1998, must be construed as meaning that the following do not constitute discrimination on grounds of sex:

The rule of the sick-leave scheme at issue which provides, in regard to female workers absent prior to maternity leave by reason of an illness related to their pregnancy, as also in regard to male workers absent by reason of any other illness, for a reduction in pay in the case where the absence exceeds a certain duration, 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;The rule of the sick-leave scheme at issue which provides for absences on grounds of illness to be offset against a maximum total number of days of paid sick-leave to which Ms McKenna was entitled over a specified period, whether or not the illness was pregnancy-related, provided that the offsetting of the absences on grounds of a pregnancy-related illness does not have the effect that, during the absence affected by that offsetting after the maternity leave, Ms McKenna receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant.

2. The parties should amend the terms of the sick leave scheme at issue so as to bring it into conformity with the principles set out in this Determination

Signed on behalf of the Labour Court

Kevin Duffy
27th April, 2006______________________
CON/CCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.