ECJ update - July 2010

9 July 2010

The jugdments concern the cases C-194/08 and C-471/08

• Susanne Gassmayr v. Bundesminister für Wissenschaft und Forschung

• Sanna Maria Parviainen v. Finnair Oyj

(1st July 2010)

Workers given leave from work or transferred to another job because of pregnancy are entitled to their basic monthly pay and the supplementary allowances attached to their occupational status

They cannot, on the other hand, claim the allowances and supplements which are intended to compensate for the disadvantages related to the performance of specific tasks in particular circumstances, where they do not actually perform those tasks

Susanne Gassmayr worked before her pregnancy as a junior hospital doctor at the University of Graz. In addition to her basic pay, she received an allowance for on-call duty at the workplace for extra hours that she worked. She stopped working during her pregnancy, on the basis of a medical certificate stating that continuing to work was likely to endanger her life or health or that of her child, and then took maternity leave.

Since Austrian law excludes the payment of the on-call duty allowance to persons who are not actually performing on-call duty, Ms Gassmayr was refused that allowance during the period when she was not working.
In the other case, Sanna Maria Parviainen worked before her pregnancy as a purser for the airline Finnair. A substantial part of her pay was made up of supplementary allowances attached to her seniority or intended to compensate for the specific disadvantages connected with the organisation of working time in the air transport sector.

On becoming pregnant, she was temporarily transferred to a ground job corresponding to office work, and she occupied that position until her maternity leave began. Following that transfer, her monthly pay was reduced, in particular because she no longer received the allowances for being a purser.
Both women brought judicial proceedings against their employers on the ground that their remuneration had been reduced during their pregnancy or maternity leave.

The Court found that, during the temporary transfer to another job or the leave from work during their pregnancy and maternity leave, both Ms Gassmayr and Ms Parviainen were no longer able to perform the duties which had been entrusted to them before their pregnancies. The Court finds that the on-call duty allowance paid to Ms Gassmayr and certain supplementary allowances received by Ms Parviainen constitute components of their remuneration which are dependent on the performance of specific functions in particular circumstances and are intended to compensate for the disadvantages related to those functions. The payment of that allowance and those supplementary allowances may therefore be conditional on the pregnant worker actually performing specific duties in return.

The Court none the less states that a pregnant worker who is granted leave from work or temporarily transferred to another job because of her pregnancy must be entitled to remuneration consisting of her basic monthly pay and the pay components and supplementary allowances relating to her occupational status, such as those relating to her seniority, length of service and professional qualifications. Also, the remuneration for the worker temporarily transferred to another job cannot in any event be less than that paid to workers occupying that job.
Moreover, the Court stated that the Pregnant Workers Directive only indicates the minimum standards therefore Member States are free to provide a higher level of protection.

Read the judgments:

Case C-471/08

Case C-194/08