The European Court of Justice (ECJ) recently delivered judgments in two cases dealing with payments that should be made to women who, for reasons connected with health and safety during pregnancy, have their working conditions altered or who are temporarily suspended. The cases, Gassmayr v Bundesminister fur Wissenschaft und Forschung (Gassmayr) and Parviainen v Finnair Oyj (Parviainen), concerned women whose jobs entitled them to supplementary allowances in addition to their basic salary.

In Gassmayr, a public sector doctor challenged the way in which Austrian law calculated her entitlement to payment during maternity suspension. Her pay (while working) was made up of a basic salary plus "extra emoluments" such as overtime pay and on-call duty allowance. Under Austrian law, her pay during maternity suspension was based on basic pay but excluded the on-call allowance.

In Parviainen, a woman working for Finnair as a purser (a supervisory cabin crew member) was transferred to ground duties as a health and safety measure when she became pregnant. Her pay consisted of basic salary plus a number of supplementary allowances which accounted for about 40% of her actual pay.  The allowances were not guaranteed, but changed depending on such things as the amount of night work, overtime, long-haul flights, weekend flights and flights across time zones. The allowances also varied depending on whether the employee performed a supervisory role (as Ms Parviainen did). On her transfer to ground duties, Ms Parviainen lost part of her flight allowances but was still paid more than ground crew.

The Decision

The ECJ delivered judgments in both cases on 1 July 2010.

Pay during altered working conditions (Parviainen)

The court held that when a pregnant worker temporarily transferred to another job and whose pay before the transfer was made up of a basic salary and supplementary allowances the payment of which depends on the performance of specific functions, is not entitled to continue to receive the same pay she received before the transfer. The court set out the following principles with regard to the amount of the payment:

It must not undermine the protection of the health and safety of pregnant workers.

It must not ignore the fact that the woman is continuing to work. The employee in question must not be paid less than employees performing the job to which she is temporarily assigned. Neither should she lose any pay components or supplementary allowances that relate to her professional status, such as seniority, length of service or professional qualifications. However, member states are not required to ensure that she continues to receive pay components or allowances that depend on "the performance of specific functions in particular circumstances and which are intended essentially to compensate for the disadvantages related to that performance".

Pay during suspension (Gassmayr)

The court issued a judgment stating similar principles to those in Parviainen. It held that the principle in Parviainen, that pay components which depend on the performance of specific functions need not be maintained while the employee is assigned to alternative work, also applies during maternity suspension.

Implications of the decision

The position in the UK is that where a risk to a pregnant employee has been identified at work, the employer must:

• Alter her working conditions or hours of work.
• If that is not reasonable or would not avoid the risk, offer suitable alternative work.
• If that is not available, or it is reasonable for the employee to refuse it, suspend the employee.

In each instance the right to pay is dealt with differently. All of these must now be looked at in the light of the ECJ's guidance in Parvianien and Gassmayr.

Altered working conditions - Where the contract provides for a fixed salary, it would seem doubtful that the employer can reduce this. However, where the employee has no guaranteed hours or pay or where her pay includes elements such as a shift premium, night work allowance or overtime pay which are not contractually guaranteed and which vary according to the actual work done, the employee may (in the absence of specific statutory or contractual protection) be liable to lose these.

Alternative work - The terms and conditions for any alternative work offered must be "not substantially less favourable" than her existing terms. This test must now be applied in the light of the ECJ's requirements in Parviainen i.e. that pay components which depend on the performance of specific functions need not be maintained while the employee is assigned to alternative work.

Suspension - In cases of suspension, the employee should receive a week’s pay for each week's suspension. The employee with normal working hours will therefore receive her basic pay (and in some cases may receive an additional component to reflect other allowances or commissions) and the employee with no normal working hours will receive an average of all her pay over the previous 12 weeks. This should mean that the requirements set out in Gassmayr are likely to be met or exceeded.

Further Information

For further information please contact Barry Nichol or your usual contact
in the Employment team.

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