Under European legislation, women have the right to be paid the same as men doing the same work or work of equal value. Women also have the right not to be discriminated against "particularly as regards pregnancy and maternity".

In North Western Health Board v McKenna (C-191/03), the European Court of Justice (ECJ) has, however, decided that a sick-pay scheme that treats pregnancy-related illness in the same way as any other illness is not discriminatory.

 

What were the facts in the case?

In January 2000, Ms McKenna discovered that she was pregnant. She subsequently went off on sick leave for almost the whole of her pregnancy because of a medical condition linked to it.

Under the Republic of Ireland board's sick-pay scheme, employees were entitled to full pay for six months, followed by half pay for six months within any four-year period.
It did not distinguish between pregnancy-related illnesses and any other form of illness.

Ms McKenna exhausted her entitlement to full pay in July 2000 and went onto half pay until the beginning of September, when she started her maternity leave.

She was on leave until 11 December 2000, but when she was unable to return to work at the end of her leave, she went back onto half pay.

She argued that she had been discriminated against contrary to the Equal Treatment Directive (ETD); and that she had been treated less favourably in terms of pay contrary to Article 141 and the Equal Pay Directive (EPD).

 

What were the questions for the ECJ?

The Irish labour court asked the ECJ:

  • Does a sick pay scheme that does not differentiate between pregnancy-related and other illnesses come within the scope of the ETD or Article 141 and the EPD?
  • If it comes within the ETD, is it contrary to the directive for an employer to offset a period of absence as a result of a pregnancy-related illness against the person's overall entitlement under the sick-pay scheme?
  • If it comes within Article 141 and the EPD, is it contrary to those laws for an employer to reduce a woman's pay when the absence is due to a pregnancy-related illness, in circumstances where a man on sick leave would also have his pay reduced?

 

What did the ECJ decide?

The court decided, first, that the case came within the scope of Article 141 and the EPD. The court then pointed out that there is no general principle under community law that says that women should continue to receive full pay during maternity leave.

The only proviso is that the pay should not be so low as to undermine the community law objective of protecting pregnant women before they give birth.

So, according to the court, if you can have a rule allowing for a reduction in pay during maternity leave that does not constitute sex discrimination, then equally you can have a rule that allows for a reduction in pay during the pregnancy because of a pregnancy-related illness.

A reduction in pay will not, therefore, constitute sex discrimination as long as the woman is treated the same way as a man who is absent on sick leave, and as long as the pay is enough to protect a pregnant worker.

Finally, the court said that it is not discriminatory to have a rule in a sick pay scheme whereby absences are offset against a maximum number of paid sick days over a specified period, whether or not the illness is pregnancy-related.

However, it then said that during periods of absence after the maternity leave, the pay must not be any lower than the minimum amount to which she was entitled during the pregnancy.