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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Prix v Secretary of State for Work and Pensions [2012] UKSC 49 (31 October 2012) URL: https://www.bailii.org/uk/cases/UKSC/2012/49.html Cite as: [2013] 1 All ER 752, [2012] UKSC 49 |
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Michaelmas Term
[2012] UKSC 49
On appeal from: [2011] EWCA Civ 806
JessySaint Prix (Appellant) v Secretary of State for Work and Pensions (Respondent)
before
Lord Neuberger, President
Lady Hale
Lord Mance
Lord Kerr
Lord Reed
JUDGMENT GIVEN ON
Heard on 15 October 2012
Appellant Richard Drabble QC (Instructed by Child Poverty Action Group) |
Respondent Jason Coppel Denis Edwards (Instructed by DWP/DH Legal Services) |
|
Intervener (The Aire Centre) Jemima Stratford QC Charles Banner (Instructed by Freshfields Bruckhaus Deringer LLP) |
LADY HALE (with whom Lord Neuberger, Lord Mance, Lord Kerr and Lord Reed agree)
The facts
Relevant domestic law
'A claimant is not a person from abroad if he is –
(a) a worker for the purposes of Council Directive No 2004/38/EC;
(b) a self-employed person for the purposes of that Directive;
(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to article 7(3) of that Directive;
(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of article 2 of that Directive;
(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive.'
Thus EU citizens who are 'workers' in the United Kingdom within the meaning of EU law are put in the same position as habitually resident citizens of the UK for the purpose of entitlement to income support (and indeed other benefits, such as housing benefit and child benefit, to which it is the passport or which have a similar rule of entitlement).
European Union law
'1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member state; . . .
3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case the status of worker shall be retained for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.'
It is noted that not all of the persons covered by Article 7(3) will be involuntarily unemployed or unable to work.
The parties' arguments
'Nor does it seem to me to be possible a fortiori to draw comparisons . . . between a woman on maternity leave and a man unable to work because, for example, he has to take part in a sporting event, even if it were the Olympic Games. Other considerations apart, a sportsman, even a champion (whether a man or a woman) is confronted with a normal choice reflecting his needs and priorities in life; the same cannot reasonably be said of a pregnant woman, unless the view is taken – but it would be absurd – that a woman who wishes to keep her job always has the option of not having children.'
Pregnancy is not just a lifestyle choice. Equal treatment encompasses the reasonable response of a working woman to the physical demands and limitations of late pregnancy and childbirth. UK law gives sensible recognition to these, not only for the sake of the mother but also for the sake of her child, by not requiring that she seek or be available for work from 11 weeks before the expected date of confinement until 15 weeks after her pregnancy has ended (whether with a live or a still birth). Excluding a woman who makes that choice from the right of residence which she would have retained had she not become pregnant is, it is argued, direct discrimination on grounds of sex.
The Court's view
The questions referred
1. Is the right of residence conferred upon a 'worker' in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain 'workers' for this purpose?
2. (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)?
(ii) If so, is she entitled to the benefit of the national law's definition of when it is reasonable for her to do so?