On
call payments not applicable during pregnancy suspension
In
Gassmayr v Bundesministerin für Wissenschaft und Forschung, the ECJ held that
Member States can legitimately withhold allowances which are dependent upon
performance of a specific task from women on maternity suspension, but not
regular allowances which are not dependent on performance.
Article
11 of the Pregnant Workers Directive requires Member States to ensure that
women placed on maternity suspension because of a health and safety risk must
receive an “adequate allowance”, i.e. it guarantees income equivalent
to that the worker would receive if on sick leave, subject to national
eligibility rules.
Dr
Gassmayr was placed on medical suspension while pregnant as her health and
safety was at risk. Her employer refused to pay her allowances for on-call
duties on the basis that if she couldn’t work, she couldn’t be on call. Dr
Gassmayr argued this contravened the Pregnant Worker’s directive. The ECJ did
not agree. Article 11 does not preclude withholding allowances which are
dependent upon performance of a specific task, such as being on call, provided
that income does not fall below national sick pay levels. However, regular
allowances which are not dependent on performance cannot be withheld.
Sections 66 to 70 of
the Employment Rights Act 1996 deal with this issue in Great Britain,
requiring that a woman must receive remuneration calculated on the basis of a
week’s pay. However, a week’s pay is not defined. Therefore whether allowances
should be paid will turn on the contractual terms.
July 2010
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