Pregnancy and Worker Status

Saint Prix v SSWP Case C-507/12 must be one of the more obvious decisions of the CJEU in the sense that the outcome should have been apparent (although the rationale less so), but no less important because of that.  The question on reference from the UKSC was, in essence, whether somebody who becomes pregnant loses their worker status for the purposes of Article 7(1), Directive 2004/38/EC.  As one of my colleagues put it, the case is of “mild interest”.

Bearing in mind the significance of losing worker status, in terms of eligibility for homelessness assistance/allocation and the range of benefits, this is a question of some importance.  The outcome, which should surprise no-one, is that a pregnant woman, who gives up work  “because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth” is not deprived of the status of worker, provided “she returns to work or finds another job within a reasonable period after confinement”.  The “reasonable period” is to be judged taking into account the circumstances of the specific case, the introduction of specific measures concerns health and safety of pregnant workers and workers who have recently given birth or are breastfeeding.

The rationale is also fairly clear in the short judgment.  The concept of worker is, of course, to be defined broadly and, in other cases, has been found to extend to periods after employment, for the purposes of seeking further employment.  Therefore the list of exceptions in Art 7(3) – which sets out the circumstances in which a worker retains that status, eg as a result of temporary inability to work due to illness or accident – is not exhaustive ([38]).  Clearly also, “a Union citizen would be deterred from exercising her right to freedom of movement if, in the event that she was pregnant in the host State and gave up work as a result, if only for a short period, she risked losing her status as a worker in that State” ([44]).  Further, Art 16(3) allows for special protection for maternity absences of up to 12 months in calculating the five year period for the right of permanent residence – the temporary absence from work must then be a fortiori.

The court has, therefore, avoided answering the rather tricky questions in the opinion of the Advocate General, at [44]-[52].  If Ms Saint Prix had been unable to claim worker status, did it necessarily also follow that she would not have been entitled to social security in the UK?  Hitherto, the assumption has been that she would have lost those rights as well.  The Advocate General did not share that assumption unconditionally.  I hear on the grapevine that the UKSC will be looking at this question shortly in Samin v Westminster CC and Mirga v SSWP.  Let’s hope that the tories don’t choke on their tea and renegotiation.

Posted in Benefits, Homeless, Housing law - All and tagged , .

2 Comments

  1. I think it worth saying that when interpreting what is reasonable for the time between childbirth and starting work the ECJ took the view that the national court must take into account as well the ” applicable national rules on the duration of maternity leave”.

    The claimant actually returned to work within 3 months of the birth so the issue probably won’t arise on return
    This is 52 weeks from [more or less ] starting the leave [up to 11 weeks pre due birth or child birth if later.

    The directive requires a minimum of 14 weeks leave. The UK gives 52 weeks, Part VIII Employment Rights Act 1996.

    This was much better than the way the advocate general’s expressions seeming to limit to 26 weeks 11 before and 15 after [note 5]

    “To ensure that the principle of non-discrimination on grounds of nationality is observed, that period cannot be shorter than the period provided for under the national legislation governing the period during which pregnant women are exempted from being available for work, or from having actively to seek work. ”

    Although the advocate general in para 39 refers explicitly to the 11 + 14 week periods (in para 14 of sched 1A of Income Support (General) regulations 1987 SI 1967 ), his actual recommendation was as above .
    The advocate general overlooked the fact that a mother would not be required to seek work until the child was 5.

    The advocate general also only referred to the ordinary leave [26 weeks – 11 before and 15 after ] as opposed to the total entitlement to maternity leave of 52 weeks

  2. I’m delighted that the result went in favour of Jessy Saint Prix. Clearly the right decision. I’m dismayed the issue was even in question, especially following Christelle Pardo’s death:

    http://www.theguardian.com/commentisfree/2010/jan/07/mother-suicide-welfare-state

    If you hadn’t previously heard about the case, essentially a woman caught in the same ‘not a worker’ lacuna was left with nothing to live on and lept to her death while holding her five month old baby.

    Apparently the serious case review looking into her death recommended that the DWP review the regulations with a view to preventing this kind of situation. Instead, the priority seems to have been defending the regulations in the Supreme Court/Europe.

    You have to wonder exactly why the DWP was so keen to maintain the status quo. Is there really any risk that floodgates will be opened following this decision? The facts are pretty specific – you have to have been in work before, have given up work because of pregnancy (most people will be on maternity leave instead), and intending to return afterwards. Surely we are only talking about supporting a handful of extremely vulnerable women (and their babies) for a limited period after they give birth? In which case, why have they fought this tooth and nail – especially in the knowledge that Christine Pardo died in similar circumstances?

    There couldn’t possibly be any xenophobia or misogny at play, could there?

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