12 September 2005

Having a child is a natural event, yet it does not come without risk. Every pregnant woman fears complications will arise during the pregnancy or delivery. However, expectant mothers are not the only ones that find pregnancy can carry certain risks. Employers often find employing pregnant workers has its complications.

Pregnant workers are given special protection under law. They have the right not to suffer a detriment owing to the fact that they are pregnant, or have recently given birth. A dismissal for a reason connected to the pregnancy will be automatically unfair. Unlawful treatment will be direct sex discrimination, without the need for a male comparator, and compensation is unlimited.

Interpreting and following these regulations is not always easy, as the following employers found out.

North Western Health Board v McKenna

In this case the employee was on sick leave owing to a pregnancy related illness for most of the duration of her pregnancy and after her maternity leave had ended. Accept for the period of her maternity leave, Mrs McKenna was paid in accordance with her employer’s sick pay, which meant she received full pay for the first six months of her illness and was then reduced to half pay. Mrs McKenna argued that she had been the victim of discrimination as her pregnancy-related illness had been treated in the same way as a 'normal'. The Advocate-General had found discrimination contrary to the Equal Treatment Directive but the decision of the ECJ, announced recently, has held that rules in a sick pay scheme that treat pregnancy-related illness in the same way as 'normal' illness are not discriminatory.

Hoyland v Asda Stores Ltd

Mrs Hoyland was eligible for a discretionary annual bonus under a scheme which aimed to reward employees’ for their performance and continued contribution. Mrs Hoyland who was absent for 6 months on maternity leave received a reduced bonus, pro rata, in accordance with the schemes rules. Mrs Hoyland subsequently sued her employer for sex discrimination and pregnancy related detriment. The EAT in this instance held that the bonus was contractual, as during its operation discretion had never been used and the bonus had never been withheld from anyone who satisfied the eligibility requirements. Furthermore, the bonus was paid via the payroll, subject to tax and NI, and it was pensionable. The EAT also regarded the contractual bonus as part of Mrs Hoyland’s remuneration. This meant the company was able to rely on express legal provisions which state that during ordinary maternity leave an employee is entitled to her normal terms and conditions but excluding her remuneration. The company were therefore entitled to pro rata the bonus to reflect the period when Mrs Hoyland was actually at work and including the two week period of her compulsory leave.

Gomez v Continental Industrias del Caucho

This Spanish company allowed 30 days holiday but only during the company’s shut down period between July and August, when Mrs Gomez happened to be on maternity leave that year. Mrs Gomez was subsequently refused holiday at another time and brought the matter before the ECJ. The ECJ considered whether an employee loses her entitlement to holiday, if for the period in which she could take holiday she was unable to do so because she was on maternity leave. In this case the ECJ stated that the entitlement to statutory maternity leave and statutory holidays are separate rights and should not be offset against one another and should be made available to take at another time.