European community law requires all member states to provide women workers with a minimum period of maternity leave, and to provide adequate protection for them when pregnant.

In an important case - Land Brandenburg v Sass (2005, IRLR 147) - the European Court of Justice (ECJ) has said that all periods of statutory maternity leave must protect the woman's employment relationship and the rights she derives from it.

 

What were the facts?

Mrs Sass, an East German national, had been employed since 1 July 1982 at a film school in Potsdam. She went on maternity leave for 20 weeks in 1987, as she was entitled under East German law.

Following the reunification of Germany, her employment relationship (now governed by an agreement known as BAT-O) was transferred to Land Brandenburg. The agreement stated that workers with 15 years' service would be promoted as long as they had not had any breaks in service. The only exception was maternity leave - eight weeks under German law.

Mrs Sass was duly promoted in May 1998, but her employer only counted the first eight weeks of her maternity leave towards her qualifying service. She argued that Land Brandenburg had discriminated against her by not counting all 20 weeks, and asked for the difference in salary for the 12 weeks between 12 February 1998 and 7 May 1998.

The lower German courts said that although the BAT-O was consistent with community law, they agreed that Mrs Sass had ended up in a worse position than a male colleague.
The appeal court, however, asked the ECJ to clarify whether article 141 and the equal treatment directive prohibit a collective agreement from excluding periods of maternity leave from a qualifying period that are not provided for under German legislation.

 

What does the Law say?

Article 141 of the EC treaty lays down the principle of equal pay for male and female workers for equal work or work of equal value.

The equal treatment directive prohibits discrimination on grounds of sex in terms of working conditions and access to employment. It specifically allows national provisions to protect pregnant women and those on maternity leave.

The pregnant workers directive encourages improvements in the health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding. This provides for a minimum period of 14 weeks' leave. During that time, an employee's contractual rights must continue (apart from her right to pay).

 

What did the ECJ decide?

The Court said that the 20 weeks' leave offered under East German law was for much the same reasons as the eight weeks under German law - to ensure the health of the mother following the birth and to allow her to look after her new baby. It decided therefore that the equal treatment directive does not allow a collective agreement to exclude any of the time a woman is on maternity leave from a qualifying period for a promotion.

It made clear that, under community law, any statutory leave should not "interrupt the employment relationship of the woman concerned, nor the application of rights derived from it." The fact that countries had legislation that gave women longer than 14 weeks did not affect their rights. Longer periods of leave would still constitute leave within the meaning of the directive, with the result that the employee's contractual rights must be protected for the whole period of leave

 

Comment

This decision could have significant implications for UK law, under which contractual rights accrue during ordinary, but not additional maternity leave (AML). Although it probably will not help a woman claiming additional pay under AML, it is likely to mean that she can claim that AML should count towards her entitlement to all service-related benefits, including annual leave.