Maternity and Pregnancy Case Law Review 2010

1. Maternity and Pregnancy Case Law Review 2010

2. Risk Assessment • O'Neill v Buckinghamshire County Council [2010] IRLR 384 - no general obligation to carry out a risk assessment on pregnant employees except:- • (a) the employee notifies the employer that she is pregnant in writing; • (b) the work is of a kind which could involve a risk of harm or danger to the health and safety of a new expectant mother or to that of her baby; • (c) the risk arises from either processes or working conditions of physical biological chemical agents in the workplace at the time specified in a non-exhaustive list at Annexes I and II of Directive 92/85/EEC.

3. Kulikaoskas v Macduff Shellfish [2010] EqLR 276 EATNeither EU law nor the Sex Discrimination Act (SDO) prohibits an employer from affording less favourable treatment to a man on the ground of a woman's pregnancy. A claim of associative discrimination, where one person suffers less favourable treatment because of the pregnancy of another person, is not permitted.

4. Vacancies during maternity leave • Johal v Equality and Human Rights Commission • She went on maternity leave on 1 December 2007, proposing to return on 5 January 2009. Asked to be kept aware of vacancies. • During maternity leave, a vacancy was posted and J was not notified of it by the Commission. She complained that she had been overlooked for a promotion opportunity because she was on maternity leave and this amounted to sex discrimination.

5. Outcome • The IT accepted that the claimant suffered a detriment. • BUT found that the Commission genuinely intended to keep her notified of vacancies and that there was a breakdown in the administrative system that they had put in place. • On the specific facts of the case, the causative link between maternity leave and the detriment suffered was not made out. • The EAT dismissed the appeal.

6. Job transfer during pregnancy and allowances • Parviainen v Finnair Oyj (C-471/08); Gassmayr v Bundesminister fur Wissenschaft und Forschung (C-194/08) • The Pregnant Workers Directive 92/95 provides that where a risk to health has been identified, the employer must either make adjustments to the job, or move the pregnant worker to another job, or suspend her. Article 11(1) of the Directive provides that in such a case a pregnant worker has the right to “maintenance of a payment ... or entitlement to an adequate allowance”.

7. Facts • Parviainen - air hostess transferred to ground work. Lost supplementary allowances paid to flight crew, though she received more than was normally paid to ground workers. • Gassmayr - a junior hospital doctor in Austria received an on-call allowance in addition to her normal salary. When she was suspended on health grounds after she became pregnant, she claimed that she was entitled to continue to receive the on-call allowance

8. ECJ’s decision • Parviainen - a pregnant woman who is temporarily transferred cannot claim under the Directive that she should continue to receive all the pay she received before the transfer, where part of the pay consisted of allowances that depended on the performance of specific duties. • Gassmayr - she was not entitled under the Directive to the on-call allowance. The allowance was based on the length of on-call duty actually performed, whereas during the period in which a pregnant woman is prohibited from working, she would not perform duties entitling her to payment of that allowance.

9. Warning! • Art 99 of the ERO (s 67 ERA) provides that an employee transferred to an alternative job on grounds of pregnancy must be transferred on terms “not less favourable” than she enjoyed. • British Airways (European Operations at Gatwick) Ltd v Moore [2000] IRLR 296, EAT • Parviainen and Gassmayr decisions suggest that UK law, as currently interpreted, may go further than is required under EU law.