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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Alabaster (Social policy) [2004] EUECJ C-147/02 (30 March 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C14702.html Cite as: [2004] EUECJ C-147/2, [2004] EUECJ C-147/02, [2004] IRLR 486, [2005] ICR 695, [2004] ECR I-3101, Case C-147/02 |
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JUDGMENT OF THE COURT (Full Court)
30 March 2004
(1)
(Social policy - Men and women - Equal pay - Pay during maternity leave - Calculation of amount - Whether to include a pay rise)
In Case C-147/02, REFERENCE to the Court under Article 234 EC by the Court of Appeal (England and Wales) (Civil Division) for a preliminary ruling in the proceedings pending before that court between Michelle K. Alabasterand
Woolwich plc, Secretary of State for Social Security, on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 to 143 EC) and the judgment in Case C-342/93 Gillespie and Others [1996] ECR I-475,THE COURT (Full Court),
after considering the written observations submitted on behalf of:
- Mrs Alabaster, by L. Cox QC and K. Monaghan, Barrister, - Woolwich plc, by M. Griffiths, Barrister, instructed by C. McIntyre, Solicitor, - the United Kingdom Government, by P. Ormond, acting as Agent, C. Vajda QC and R. Haynes, Barrister, - the Commission of the European Communities, by M.-J. Jonczy and N. Yerrell, acting as Agents,having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Alabaster, represented by K. Monaghan and by A. Reindorf, Barrister, the United Kingdom Government, represented by C. Jackson, acting as Agent, and C. Vajda, and the Commission, represented by J. Jonczy and N. Yerrell, at the hearing on 24 June 2003,
after hearing the Opinion of the Advocate General at the sitting on 30 September 2003,
gives the following
'Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For the purpose of this article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, whether directly or indirectly, in respect of his employment from his employer.'
'1. Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice. 2. The maternity leave stipulated in paragraph 1 must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice.'
'In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this article, it shall be provided that: ... (2) in the case referred to in Article 8, the following must be ensured: (a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below; (b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2; (3) The allowance referred to in point 2(b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation. (4) Member States may make entitlement to pay or the allowance referred to in points 1 and 2(b) conditional upon the worker concerned fulfilling the conditions of eligibilty for such benefits laid down under national legislation. These conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement.' National law The Social Security Contributions and Benefits Act 1992
The Statutory Maternity Pay (General) Regulations 1986
'(a) the last normal pay day before the appropriate date; and (b) the last normal pay day to fall at least 8 weeks earlier than the normal pay day mentioned in subparagraph (a), including the normal pay day mentioned in subparagraph (a) but excluding that first mentioned in subparagraph (b)'.
'In any case where a woman receives a back-dated pay increase which includes a sum in respect of a relevant period, normal weekly earnings shall be calculated as if such sum was paid in that relevant period even though received after that period.'
'In a situation where: - the earnings-related element of a woman's statutory maternity pay (SMP) is calculated by reference to her normal weekly earnings for an eight week period ending on the 15th week before the expected week of confinement (the relevant period), and - the employer grants a pay rise, which is not back-dated to the relevant period, at any time after the end of the relevant period used for calculating that woman's earnings-related element of SMP and before the end of her maternity leave: 1. Is [Article 119 of the Treaty] and the judgment in Gillespie [1996] ECR I-475 to be interpreted as meaning that the woman is entitled to have that pay rise taken into consideration in calculating or re-calculating the earnings-related element of her SMP? 2. Is the answer to Question 1 affected by whether the effective date of the pay rise commences: (i) prior to the beginning of the woman's maternity leave, (ii) prior to the ending of the period of the earnings-related period of her SMP, or (iii) on some other date and, if so, on what date? 3. If the answer to Question 1 is in the affirmative, (a) how should the calculation or re-calculation of the normal weekly earnings in the relevant period take into account the pay rise? (b) Should the relevant period be changed? (c) What allowance, if any, should be made for other factors occurring within the period to which the pay rise relates such as the numbers of hours worked, and the reason for the pay increase? (d) Does it follow that if there is a reduction in pay after the end of the relevant period but before the end of the woman's period of maternity leave, her SMP should be calculated or re-calculated to take account of the reduction of pay, and if so, how is this to be done?'
Third question
On those grounds,
THE COURT
in answer to the questions referred to it by the Court of Appeal (England and Wales) (Civil Division) by order of 27 March 2002, hereby rules: 1) Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 to 143 EC) must be interpreted as requiring that, in so far as the pay received by the worker during her maternity leave is determined at least in part on the basis of the pay she earned before her maternity leave began, any pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay. This requirement is not limited to cases where the pay rise is back-dated to the period covered by the reference pay. 2) Absent any Community legislation in this sphere, it is for the competent national authorities to determine how, in compliance with all the provisions of Community law, and in particular Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC), any pay rise awarded before or during maternity leave must be included in the elements of pay used to calculate the pay due to a worker during maternity leave.
Skouris |
Jann |
Timmermans |
Gulmann |
Cunha Rodrigues |
Rosas |
La Pergola |
Puissochet |
Schintgen |
Macken |
Colneric |
|
R. Grass |
V. Skouris |
Registrar |
President |
1 - Language of the case: English.