The European Court of Justice (“ECJ”) has clarified the obligations of employers to pay allowances to workers during pregnancy or maternity leave, where they are temporarily transferred to another job or granted leave from work.
Two separate references on the application of the Pregnant Workers Directive (92/85/ EEC) had been made to the ECJ by national courts, one from Austria and another in Finland.
In the first case, Ms Gassmayr had worked before as a junior hospital doctor, and received in addition to her basic pay, an allowance for on-call duty. She stopped working during her pregnancy and was refused that allowance during the period when she was not working. Austrian law excluded the payment of the on-call duty allowance to persons who are not actually performing on-call duty.
In the second case, Ms Parviainen had worked before her pregnancy as a purser for the airline Finnair. A substantial part of her pay was made up of supplementary allowances attached to her seniority or intended to compensate for the specific disadvantages connected with the organisation of working time in the air transport sector. On becoming pregnant, she was temporarily transferred to a ground job until her maternity leave began. Following that transfer, her monthly pay was reduced, in particular because she no longer received the allowances for being a purser.
Both women brought actions against their employers on the ground that their remuneration had been reduced during their pregnancy or maternity leave. The national courts referred the cases to the ECJ, asking whether the Pregnant Workers Directive allows employers to refuse to pay certain allowances which the workers had received before their pregnancies.
The ECJ held that:
Both Ms Gassmayr and Ms Parviainen were no longer able to perform the duties which had been entrusted to them before their pregnancies.
Certain allowances were dependent on the performance of specific functions, intended to compensate for the disadvantages related to those functions. The payment of these allowances may therefore be conditional on the pregnant worker actually performing specific duties in return.
A pregnant worker who is granted leave from work or temporarily transferred to another job because of her pregnancy must be entitled to remuneration consisting of her basic monthly pay and the pay components and supplementary allowances relating to her occupational status, such as those relating to her seniority, length of service and professional qualifications.
The remuneration which must be maintained for a pregnant worker temporarily transferred to another job cannot be less than that paid to workers occupying that job. For the duration of the temporary transfer, the pregnant worker is also entitled in principle to the pay components and supplementary allowances relating to that job.
As regards workers on maternity leave, the Court notes that their position is not comparable to those actually at work, and they are not therefore entitled to continue to receive their full pay or to be paid an on-call duty allowance. Moreover, the directive itself provides that the minimum remuneration payable to them is equivalent to that which the worker concerned would receive in the event of a break in her activities on health grounds.
Finally, the Court noted that the Directive only lay down the minimum and that Member States were free to maintain, for workers granted leave from work or temporarily transferred to another job during their pregnancy or on maternity leave, their entire remuneration, at a higher level than that guaranteed by the Directive.
The cases now return to the national courts for final determination.