Rights for working mums received a major boost recently when the High Court ruled that the UK’s current maternity regime does not comply with EU law.  Hot on the heels of the revised maternity laws which took effect from April this year as well as the proposals to allow fathers to share maternity leave, the fall-out from this landmark case could see employers having to grapple with yet more new law. The changes could include blurring the distinction between Ordinary Maternity Leave (“OML”) and Additional Maternity Leave (“AML”) and forcing employers to continue offering benefits throughout the whole maternity leave period.

In Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327, the Equal Opportunities Commission mounted, in judicial review proceedings, a number of successful challenges to various strands of equal opportunities laws.  Some parts of the decision have been widely reported.  However, the parts of the case dealing with maternity rights have received far less publicity – this is surprising given that they have possibly the greatest practical implication for most employers.  The EOC case built upon the ECJ decision of Land Brandenberg v Sass, which examined the relationship between domestic and EU maternity rights 

EU law (the Pregnant Workers Directive) requires member states to give working mums the right to at least 14 weeks’ maternity leave, during which:

  • Dismissal must be prohibited save in exceptional circumstances unconnected with pregnancy; 
  • Rights relating to the employment contract must be preserved; and
  • The worker must receive payment of an adequate allowance during the period of leave. The payment must be equivalent to that which the worker would be entitled if she was absent through ill-health – i.e. in the UK, it would have to be equal to statutory sick pay (“SSP”).

In the UK, OML complies with these requirements including the provision of Statutory Maternity Pay, which is equivalent to SSP. However, AML arguably does not comply, in several key respects including that s6A(3) of the Sex Discrimination Act 1975 provides that it is not unlawful to deprive a woman who is on AML of any benefit from the terms and conditions of her employment. This failure of AML to comply with the Pregnant Workers Directive was previously thought not to matter because AML applies over and above the 14 weeks’ EU maternity leave. In other words, AML was thought not be “maternity leave” within the meaning of the Pregnant Workers Directive. However, in the Sass case, the ECJ looked at maternity rights in Germany, which also went beyond the 14 weeks’ required by EU law. The ECJ said that if a member state granted employees additional leave in excess of that required by the Pregnant Workers Directive then that addition leave was still “maternity leave” within the meaning of the Directive.  In other words, there is only one type of maternity leave and the EU mandatory protections must apply throughout the whole period.

In the EOC case, the EOC successfully argued that the UK’s maternity regime, which gives different rights during OML and AML, is not compliant with the principles of Sass. As a result, the Government will be forced to amend the law to comply with the Sass ruling. This means that AML will now need to meet the conditions set out in the Pregnant Workers Directive, as described above. Currently, AML does not comply with those conditions in that:

  • Most contractual rights are suspended;
  • Women typically do not receive benefits during AML; and
  • Part of AML is unpaid.

As a minimum, the Government will now have to ensure that these conditions are met throughout the entire period of maternity leave, including AML. It has not yet issued any proposals as to how it intends to achieve this but has confirmed that the decision will not be appealed. Most commentators (including this one) do not think that all differences between OML and AML will be swept aside by amending legislation.  Such a move would be deeply unpopular with employers.  However, it is difficult to see what measures short of this could achieve compliance with the ECJ’s comments. 

Employers in the private sector need not panic just yet – they can wait until the Government introduces (yet more) changes to the maternity regime to achieve the necessary changes and bring it into line with the ECJ’s judgment.  However, public sector employers face the immediate spectre of direct enforcement in the form of women claiming protection directly under EU law to insist on OML type rights during AML. All employers, however, whether public or private sector, should watch this space.

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