Employment and pensions: Equal treatment for pregnant women

United Kingdom


The ECJ has found that Council Directive 76/207/EEC on equal treatment precludes the dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by illness resulting from that pregnancy. Whilst Directive 96/207 makes it clear that protection against dismissal must be afforded to women during maternity leave, the principle of non-discrimination requires similar protection throughout the period of pregnancy.

The Court held that the dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such dismissal can affect only women and therefore constitutes direct discrimination on the grounds of sex. The Court further ruled that the fact that a female worker has been dismissed on the basis of a contractual term providing that an employer may dismiss workers of either sex after a stipulated number of weeks does not prevent the finding of direct discrimination on grounds of sex.

Reversing its previous case law, the Court found that where a woman is absent owing to illness resulting from pregnancy or childbirth, her absence cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work.