North Western Health Board v McKenna

Sick-pay schemes and pregnancy-related illness
North Western Health Board v McKenna, European Court of Justice,
8 September 2005

Pregnancy-related illness and sick pay have been the subject of debate in the European Court of Justice (ECJ) this month. It ruled that a sick-leave scheme which treated pregnancy-related illness in the same way as ‘normal’ (non pregnancy-related) illnesses was not discriminatory.

The facts
McKenna, an employee of an Irish Health Board, was absent on sick leave (on medical advice) for almost the entire period of her pregnancy due to a pregnancy-related illness.

In her employer’s sick-leave scheme, staff were entitled to 365 days’ paid sick leave in any four-year period – full pay for a maximum of 183 days’ incapacity in any 12-month period, falling to half pay for any additional days of sick leave within the same 12 months.

The scheme made no distinction between pregnancy-related illnesses and other forms of illness. McKenna exhausted her entitlement to full pay and was receiving half pay when her maternity leave began. During maternity leave, she received full pay in accordance with the relevant regulations, but at the end of maternity leave, she was still unfit for work, and so her salary was once again reduced to half pay under the terms of the sick-leave scheme.

The complaint
McKenna brought a complaint claiming that she had been the victim of discrimination contrary to the Equal Treatment Directive in that her pregnancy-related illness had been treated in the same way as a ‘normal’ illness, and her sickness absence had been offset against her overall sick-leave entitlement.

She also argued that the reduction to half pay, after exhausting her entitlement to full sick pay, amounted to unfavourable treatment, contrary to Article 141 EC of the Equal Pay Directive. Her complaint was upheld, but on appeal, the case was referred by the Irish Labour Court to the ECJ.

The European Court’s decision
The continued payment of wages to a worker in the event of illness falls within the concept of ‘pay’, and therefore such a sick-leave scheme is covered by Article 141 EC of the Equal Pay Directive, not the Equal Treatment Directive.

The court ruled that it is not discriminatory for a pregnant worker, absent due to a pregnancy-related illness, to suffer a reduction in pay, provided that she is treated in the same way as a male worker who is absent on the grounds of illness, and provided the amount of sick pay is not so low as to undermine the objective of protecting pregnant workers.

The ECJ also ruled that it is not discriminatory for a sick-leave scheme to offset absence through illness, pregnancy-related or not, against a maximum period of paid sick leave to which a worker is entitled.

However, the court went on to caution that offsetting absence on the grounds of pregnancy-related illness should not have the effect that during later periods of absence, the female worker receives pay that is lower than the minimum amount to which she was entitled during her earlier illness (while she was pregnant).

The court’s intention here is by no means obvious. However, following the ECJ’s judgment, the case will go back to the Irish Labour Court. This should clarify the practical effect of this judgment on sick-leave schemes.

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