ECJ Rules on Pregnant Worker's Pay
Meredith Hurst Wednesday, January 13, 2010
The Advocate General has given his opinion in the case of Parviainen v Finnair Oyj (C-471/08), recommending that the European Court of Justice hold that the EU Pregnant Workers Directive (No.92/85) does not require an employer to pay a pregnant worker, who is temporarily transferred to a different job to prevent her being exposed to health risks, the average salary that she earned prior to the transfer. Under Article 11, the employer is required to provide her with an adequate allowance, which must be no less than a male or female worker is paid for doing an equivalent job.
P worked for a Finnish airline as an air stewardess. When she became pregnant, her employer moved her to ground staff in order to comply with health and safety laws that protect expectant mothers and their unborn babies. As set out in a collective agreement, P was paid a basic salary and any allowances available for ground staff. As a result, she received a third less than before. P complained that the reduction of her salary was in breach of the Pregnant Workers Directive and the relevant Finnish law, as she was entitled to the same salary as before her temporary transfer. The Finnish court referred the matter to the European Court of Justice.
The Advocate General noted that it was accepted that P's job as an air stewardess exposed her and her unborn baby to health risks and that, in accordance with Article 5(2), the employer was under a duty to temporarily transfer her to ground staff in order to avoid those risks. The provision at issue on this reference was Article 11(1), which provides that 'the employment rights relating to the employment contract, including the maintenance of a payment to, and/or entitlement to an adequate allowance for [pregnant workers], must be ensured in accordance with national legislation and/or national practice'. In the Advocate General's view, this did not mean that a pregnant worker is entitled to receive the same salary that she received before the temporary move to a different job. The provision uses the indefinite article ('a' payment) to describe the payment to be made, and clearly leaves it to individual Member States to stipulate the exact amount payable. Furthermore, as was established by the ECJ in Boyle v Equal Opportunities Commission 1999 ICR 360, Member States merely have to ensure that the allowance or payment to the pregnant worker is adequate. This was in line with the Directive's overall purpose to ensure a minimum level of protection for pregnant women and those who have recently given birth. In any event, if it had been the intention of the legislator to ensure that the pregnant worker's (pre-transfer) salary should continue, it would have been easy enough to word the provision accordingly.
Article 11(1) should therefore be interpreted as requiring the employer to maintain the payment of an adequate allowance during the woman's pregnancy. A payment is adequate if it is at least equivalent to that of a male or female worker who performs an equivalent kind of work, or who was transferred to an equivalent kind of work because of health reasons. However, Member States must ensure that they continue to pay a pregnant woman any allowances she received prior to her transfer in respect of her status, in particular her seniority, or professional qualifications. Allowances relating to the particular terms or requirements of her previous job, on the other hand, do not have to be maintained.