Pregnancy Directive does not entitle to keep the same pay

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Date:
16 Feb 2010

when a pregnant employee is transferred to other duties to protect her, it is not necessarily incompatible with community law if the pay she is given in the temporary job is lower, according to the advocate general

By:
Yvonne Frederiksen
When a pregnant employee is transferred to other duties to protect her, it is not necessarily incompatible with Community law if the pay she is given in the temporary job is lower, according to the Advocate General
 
Under the Pregnancy Directive, employers must ensure that pregnant employees are given other duties if their normal duties have or may have a detrimental effect on the unborn child’s or mother’s health. If a pregnant employee is transferred to other duties, the Directive prescribes that her employment rights, including pay or an adequate allowance, must be ensured in accordance with national legislation or national practice.
 
The case concerned a Finnish woman working as a purser for a Finnish airline. When she became pregnant, she was transferred to ground administrative duties. But the new job paid less because it did not entitle her to the same number of allowances.
 
Not incompatible with Community law
The employee believed that this was in breach of the Pregnancy Directive, which, according to her, entitled her to the same pay as she had received before being transferred to other duties. The employer disagreed, and the Finnish court decided to refer the question to the European Court of Justice for a preliminary ruling.
 
The Advocate General said – based on a literal and a purposive interpretation – that the Pregnancy Directive does not preclude that a pregnant employee receives less pay following a change of duties. However, the national courts must ensure that the pay received by the pregnant employee in the new job is fair, having regard among other things to the principle of equal treatment.
 
With regard to the allowances etc. received by the employee before the transfer, the Advocate General said that the employee is entitled only to those allowances that are based on work status and/or qualifications and age. Allowances intended to compensate for specific conditions and disadvantages involved in the former duties do not have to transfer with the employee.

 

Norrbom Vinding notes

  • that the Danish legislation implementing the Pregnancy Directive does not directly address the issue of whether pregnant employees are entitled to keep their normal pay if they are paid less in their temporary job;

  • that there is currently no case law which expressly addresses the issue of whether pregnant employees have such an entitlement; but

  • that the Advocate General’s reasoning in the Opinion issued seems to be correct.
Norrbom Vinding will follow the case and provide an update when the ECJ has ruled.