Member Article

The judgement of the European Court of Justice in case C-191/03 – North Western Health Board v. Margaret McKenna, dated 8 September 2005 The case developed out of a dispute between the North Western Health Board and Ms McKenna, its employee, concerning the amount of pay which she received during an absence on grounds of a pregnancy-related illness and the offsetting of that absence against the maximum total number of days of paid sick leave to which a worker is entitled over a specified period pursuant to a sick leave payment scheme adopted by the employer. Ms McKenna contended that she had been a victim of discrimination contrary to Directive 76/207 of 9 February 1976, which provides for implementation of the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions (OJ [1976] L 39, p. 40) inasmuch as her pregnancy-related illness had been treated in the same way as a ‘normal’ illness and her period of absence offset against her overall sick-leave entitlement. She also argued that placing her on half pay after a specified period during which she had been entitled to full pay constituted unfavourable treatment in respect of pay contrary to Article 141 of the EC Treaty and Directive 75/117 of 10 February 1975, which provides for approximation of laws relating to the application of the principle of equal pay for man and woman (OJ [1975] L 45, p. 19). At first the European Court of Justice (hereinafter the “ECJ”) noted that the scheme in question resulting in a reduction in pay and subsequently in an exhaustion of entitlement to pay, operates automatically on the basis of an arithmetical calculation of the days of absence on grounds of illness. Therefore, such a sick-leave scheme, while treating identically female workers suffering from a pregnancy-related illness and other workers suffering from an illness that is unrelated to pregnancy, nonetheless falls within the scope of Article 141 of the EC Treaty and Directive 75/117. Next, following a detailed review of Community law, the ECJ stated that a female worker: (i) cannot be dismissed during her maternity leave by reason of her condition or, prior to such leave, by reason of an illness related to the pregnancy and arising before such leave; (ii) may, in appropriate cases, be dismissed by reason of an illness related to pregnancy or childbirth and arising after the maternity leave; (iii) may, in appropriate cases, suffer a reduction in pay either during maternity leave or, after such leave, in the event of an illness related to pregnancy or childbirth and arising after such leave. Moreover, the ECJ affirmed that that Article 141 of the EC Treaty and Directive 75/117 as meaning that the following do not constitute discrimination on the ground of sex: (i) a rule of a sick-leave scheme 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; (ii) a rule of a sick-leave scheme which provides for absences on grounds of illness 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, provided that the offsetting of the absences on grounds of pregnancy-related illness does not have the effect that, during the absence affected by that offsetting after the maternity leave, the female worker receives pay that is lower than the minimum amount to which she was entitled during the illness which arose while she was pregnant.