Maternity ruling to settle ‘grey’ area of benefits law

Date: 22/10/1998

By Renée Cordes

WORKING women in the EU will soon get long-awaited guidance on the employment benefits to which they are entitled during and after maternity leave.

The European Court of Justice will decide next Tuesday (27 October) whether the UK body responsible for safeguarding workers' rights discriminates against women by imposing conditions on pension and other benefits for those taking maternity leave.

Four years after an EU regulation calling for the equal treatment of female and male workers regardless of marital or family status came into force, the ECJ is being asked to provide clarity in what Brussels-based lawyer Julie Nazerali calls a "grey" area of law.

Three women, all of whom completed a year's employment at the UK's Equal Opportunities Commission (EOC), claim the maternity leave policy for civil servants in England and Wales discriminates against women.

They are contesting, among other things, the employer's requirement that pregnant women return to work following maternity leave in order to get full pay during their absence. They also argue that employees should be allowed to continue to accrue pension benefits during unpaid maternity leave.

Under the EOC's maternity policy, a worker is entitled to three months' plus one week's paid maternity leave provided she agrees to come back to work after childbirth and agrees to repay any money she received while on leave if she fails to return.

The equal opportunities watchdog argues that its policy on maternity leave, which differs from other kinds of absence such as sick leave, is not unfair. It claims that benefits are governed by employment contracts in the absence of appropriate laws.

"Quite often if someone has the right to take maternity leave, then her pensionable service will continue," said Harold Lewis, a pensions lawyer and partner at UK-based Eversheds, who is leading an effort to push the EU to open its pension markets. "There might be some suspension of employee contributions, but that is a matter of contract."

He added, however, that a pension scheme which was not consistent with workers' rights was clearly discriminatory.

A spokeswoman for the EOC said the institution had not changed its employment policy since the suit was filed, but declined to discuss details of the case ahead of the Court's decision.

The case is the latest in a series dealing with women's rights since the adoption of a 1992 EU law on measures to improve health and safety for pregnant workers as well as those who have recently given birth.

In a 1993 case, the Court ruled that while women were not entitled to receive full pay during maternity leave, the amount should not be so low as to "undermine" the purpose of the leave. Legal experts are now looking to the Court to nail down specifics.

The European Commission is also currently trying to get an overview of countries' different laws on pregnant workers' rights.

It is conducting a survey of how EU member states have implemented laws, which it intends to publish by the end of the year. An official said the institution would be watching the ECJ's ruling closely.

The Commission's study is likely to find that policies vary widely from one country to another, according to legal experts. "The benefits vary according to each member state," said Nazerali. "Sometimes it seems that a woman can take x number of weeks' leave in one member state, and take longer in another."