Busch v Klinkum Neustadt GmbH & Co Betriebs-kg [2003] IRLR 625

This is a decision by the European Court of Justice (ECJ) in a German case. The ECJ held that it is contrary to Article 2(1) of the Equal Treatment Directive to require an employee, who wishes to return to work before the end of parental leave, to inform her employer that she is pregnant again, even though because of her pregnancy she will be unable to carry out all of her duties and even if the employee's intention to return to work was to receive maternity allowance which was more than that for parental leave.

It also held that it is direct discrimination on grounds of sex for an employer to take an employee's pregnancy into consideration in refusing to allow her to return to work before the end of her parental leave.

Ms Busch was employed as a nurse with the Respondent clinic. She gave birth to her first child in June 2000 and took three years parental leave. However in October 2000 she became pregnant again. On 31 January 2001 she wrote to her employers requesting to return to work early and to terminate her parental leave. She did this solely so that she would receive maternity pay, which is higher than the pay for parental leave. On 9 April 2001 she returned to work and the next day she informed her employers that she was seven months pregnant. The employers rescinded the agreement to allow her to return on the basis that she had made a fraudulent misrepresentation. They further submitted that she could not remain at work as she could not have carried out her duties effectively because under German law pregnant women should not be assigned certain tasks which involved lifting and carrying and as a nurse, she would have had to do both.

Ms Busch brought proceedings for maternity pay arguing that she was not required to declare that she was pregnant and that she would have been able to carry out her duties as a nurse at the start of her maternity leave.

The ECJ held that it was sex discrimination to require a woman to give notice to her employers that she was pregnant in Ms Busch's circumstances.

This case is an excellent reminder of the scope of protection afforded to pregnant women under European law.