Employees who go out on maternity leave or are transferred to another job because of pregnancy are entitled to their basic monthly pay and the supplementary allowances attached to their occupational status, the European Court of Justice has recently asserted. They cannot, on the other hand, claim allowances and supplements which are intended to compensate for the disadvantages related to the performance of specific tasks in particular circumstances, where they do not actually perform such tasks.
This ruling arose out of two separate preliminary references made by Austrian and Finnish courts. A female employee worked as a junior hospital doctor before her pregnancy. In addition to her basic pay, she received an allowance for on-call duty at the workplace for extra hours that she worked.
She stopped working during her pregnancy and then took maternity leave. Since Austrian law excludes the payment of the on-call duty allowance to persons who are not actually performing on-call duty, she was refused such allowance during the period when she was not working.
In a separate case, a Finnish employee worked before her pregnancy as a purser for an airline. A substantial part of her pay was made up of supplementary allowances attached to her seniority or intended to compensate for the specific disadvantages connected with the organisation of working time in the air transport sector. On becoming pregnant, she was temporarily transferred to a ground job corresponding to office work and she occupied that position until her maternity leave began. Following that transfer, her monthly pay was reduced, in particular because she no longer received the allowances for being a purser.
Both women brought judicial proceedings against their employers on the ground that their remuneration had been reduced during their pregnancy or maternity leave in breach of EU law. Both the Austrian and Finnish courts made a preliminary reference to the European Court of Justice, requesting guidance as to whether EU law allows employers to refuse to pay workers certain allowances which they had received prior to their pregnancies.
The court confirmed that during the temporary transfer to another job or maternity leave, both employees were no longer able to perform the duties which had been entrusted to them before their pregnancies. It noted that both the on-call duty allowance and the supplementary allowances are components of remuneration which are dependent on the performance of specific tasks in particular circumstances and are intended to compensate for the disadvantages relating to a particular job.
It is therefore possible for the payment of such allowances to be conditional on the pregnant worker actually performing specific duties in return.
The court, however, also observed that a pregnant worker who is granted leave from work or temporarily transferred to another job because of her pregnancy must be entitled to remuneration consisting of her basic monthly pay and the pay components and supplementary allowances relating to her occupational status, such as those relating to her seniority, length of service and professional qualifications.
Moreover, the remuneration paid to a pregnant worker temporarily transferred to another job cannot be less than that paid to workers occupying that job. Indeed, the court maintained that for the duration of the temporary transfer, the pregnant worker is also entitled, in principle, to the pay components and supplementary allowances relating to the job she has been transferred to.
In so far as employees on maternity leave are concerned, the court noted that their position is not comparable to that of a worker actually at work. Indeed, in terms of EU law, they are not entitled to continue to receive their full pay or to be paid an on-call duty allowance. The minimum remuneration payable to them, in terms of EU law, must be equal to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health. Obviously, the court observed, member states are free to maintain for workers availing themselves of their maternity leave entitlement or temporarily transferred to another job during their pregnancy, their entire remuneration at a higher level than that guaranteed by EU law.
This ruling serves to delineate the rights that pregnant employees and employees on maternity leave are entitled to and those to which they are not. Such a clarification is important for both employer and employee, in particular in the case of those jobs which give rise to supplementary allowances such as the ones which were the subject-matter of this ruling.
Dr Vella Cardona is a practicing lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is also a visiting lecturer at the University of Malta.
mariosa@vellacardona.com