The issue of pregnant workers’ loss of supplementary allowances during maternity suspension and alternative work was considered by the ECJ in Gassmayr v Bundesminister fur Wissenschaft und Forschung and Parviainen v Finnair Oyj.
In Gassmayr, a pregnant junior hospital doctor in Austria lost her on call allowances when she was put on maternity health suspension. Her employer argued that these payments were related to services actually rendered and so were not payable during maternity suspension. In Parviainen the employee worked as an air hostess for Finnair receiving a substantial amount (around 40%) of her overall pay by way of supplementary allowances. Due to her pregnancy she was temporarily transferred to ground work.
The issue before the ECJ in both cases was whether an employee who is either suspended or temporarily transferred to another post by reason of her pregnancy is entitled to the same remunerative package, on average, as that she received before she went on maternity suspension/undertook alternative duties.
The ECJ noted that in the case of an employee carrying out different duties, European law (the Pregnant Workers Directive) only provided that pay should be at least as good as sick pay in the relevant country. However, such a worker is not entitled to receive all the remuneration she previously received by way of additional allowances. Payment must not undermine the objective of the Pregnant Workers Directive of protecting health and safety and should not be less than that of others carrying out that job but there is no requirement to continue to pay allowances that depend on the performance of specific functions.
With regard to Gassmayr, ECJ reiterated that the components of pay which depend on the performance of particular functions need not be paid when the employee is on maternity suspension. Whilst national measures should not undermine the objective of safeguarding the health and safety of pregnant workers it was not unlawful in this case to deny the payment of the on call allowance during maternity suspension.
Under UK domestic legislation, section 67 of the Employment Rights Act 1996 provides that terms and conditions for alternative work must be ‘not substantially less favourable’ than the worker’s existing terms and case law (British Airways Ltd v Moore) has held that denial of flying allowances to air stewardesses breached this requirement. This goes further than the ECJ ruling.
With regard to maternity suspension, an employee in the UK must receive a week’s pay which, according to the method of calculation, should meet the Gassmayr requirements.