Steve Peers
Jessy Saint Prix, a young woman from France, relocated to Britain in 2006 to pursue a teaching career. Her experience led her to learn much more about EU law and the English legal system than she expected.
After working in the UK as a teaching assistant for a year, she began a teacher training program (PGCE). During the program, she became pregnant and decided to pause her studies to register with a teaching agency. She took on some work at nurseries but found it physically challenging at nearly six months pregnant. Unable to secure other suitable work, she stopped working around 12 weeks before her due date.
When her baby was born, the UK government denied her income support, categorizing her as a ‘person from abroad’ instead of a ‘worker’ despite her prior employment. This decision was challenged by Ms. Saint Prix in court. While initially successful, the government appealed the decision, ultimately leading to the UK Supreme Court referring questions about the case to the Court of Justice of the European Union (CJEU). The CJEU ruled in her favor.
The Court’s primary focus was on the circumstances under which EU citizens, like Ms. Saint Prix, maintain their ‘worker’ status and associated benefits after being employed in a host Member State. The EU’s citizens’ Directive states that ‘worker’ status is retained during temporary inability to work caused by illness or accident, involuntary unemployment (under certain conditions), or vocational training related to previous employment. This last condition applied to Ms. Saint Prix’s situation before she left her training program, unless her unemployment was involuntary. The relevant section of the Directive (Article 7(3)) does not specify if this list is exhaustive.
The Court determined that this lack of specificity was not significant. It emphasized the established legal principle that the definition of ‘worker’ under Article 45 TFEU falls under primary law and cannot be restricted by secondary law. However, it confirmed, based on its case law on sex discrimination, that pregnancy cannot be classified as an ‘illness’ according to the Directive.
In this particular case, the Court decided that the ‘worker’ definition could apply to someone like Ms. Saint Prix, who had prior employment in the host state, stopped working within three months of her due date due to pregnancy, and returned to work within three months of giving birth without leaving the Member State. The Court drew a comparison, though unusual, between her situation and a previous ruling where prisoners retained ‘worker’ status during their incarceration.
Maintaining ‘worker’ status in such a scenario is not indefinite, the Court clarified. It depends on the individual resuming work or finding a new job “within a reasonable period after confinement.” What constitutes a ‘reasonable period’? The CJEU stated that this must be assessed based on the specific circumstances and the national laws regarding maternity leave, aligning with the EU Directive on pregnant workers.
This Directive mandates a minimum of 14 weeks of leave, with at least two weeks taken before the due date. However, many Member States choose to legislate longer periods. Though the Commission suggested extending maternity leave to 18 months in 2008, this proposal was not adopted, and its withdrawal is being considered.
It’s important to highlight that the CJEU did not reference compliance with national laws regarding leave taken before confinement. Additionally, while the pregnant worker’s Directive allows Member States to set a qualifying work period (up to a year) for receiving maternity pay, there’s no such condition for maternity leave. Therefore, the sole qualification under free movement law is that the individual is recognized as a ‘worker.’
The Court concluded by pointing out that under the citizens’ Directive, a break in residency due to pregnancy or childbirth (up to one year) does not disrupt the required five-year stay for obtaining permanent residence. Therefore, ‘worker’ status should logically be maintained during pregnancy-related breaks. However, the Court clarified that this does not imply ‘worker’ status is maintained for breaks up to a year, considering its earlier statement about the limitations of this rule.
Unlike the Advocate-General’s opinion, the Court did not explicitly mention the Charter of Fundamental Rights or general sex discrimination issues. However, this judgment carries significant weight for female EU citizens who are migrants. It may also influence the interpretation of EU law concerning third-country nationals. For instance, the definition of ‘worker’ under the EU/Turkey association agreement mirrors that of EU free movement law.
What are the limitations and opportunities presented by this judgment for migrant women? A key limitation is the requirement of initially qualifying as a worker in the host state. The Court’s firm stance on defining ‘worker,’ despite potential constraints from secondary law, leaves open the possibility that it might also supersede limitations within the citizens’ Directive related to benefit access for job seekers. This issue will be addressed by the Court in its upcoming ruling on the Dano case.
Another limitation is that they must either return to their previous employer or find new employment if unemployed at the time of childbirth, as in Ms. Saint Prix’s case. EU law makes it relatively straightforward for pregnant workers to keep their jobs, as dismissal based on pregnancy is prohibited by the pregnant workers’ Directive, except in unusual cases unrelated to the pregnancy. Pregnant workers in such situations would usually apply for maternity pay or allowances under the pregnant workers’ Directive rather than income support. However, access to income support might be relevant for pregnant workers who have not yet met the qualifying period for maternity pay stipulated in the Directive.
Finding work by the end of the maternity leave period is understandably more challenging for new mothers who were unemployed during their pregnancy. While Ms. Saint Prix was able to find work, this may not be possible for everyone. This raises a difficult question about potential income support repayment obligations.
There will likely be cases where medical complications from pregnancy or childbirth make seeking work difficult, even after maternity leave ends. This issue has resulted in complex and debated case law in the context of sex discrimination law. However, the citizens’ Directive states that former workers who are unfit to work retain ‘worker’ status. Because the CJEU’s case law on sex discrimination considers medical issues stemming from pregnancy or childbirth as regular illnesses after maternity leave, women facing such challenges would retain their ‘worker’ status (and access to benefits) under free movement law.
Additionally, there will be instances where a new mother cannot secure employment by the end of her maternity leave, despite her best efforts, or if her employer becomes insolvent. Addressing these complex issues, the Court cites an obligation to consider the ‘specific circumstances of the case’ without elaborating. This arguably complements, rather than restricts, the reference to national legislation on maternity leave. In any case, the broader limitations on deporting unemployed EU citizens would be applicable in such scenarios.
Logically, this judgment extends to women who have worked in the host state and stopped due to an accident, involuntary unemployment, or vocational training, subject to the Directive’s conditions, as they maintain ‘worker’ status. Completing her course as originally planned was not feasible for Ms. Saint Prix due to her baby’s arrival time. However, this judgment could be highly relevant for women whose due dates fall after their course completion.
Ultimately, this judgment should be considered within a larger context. EU law has consistently promoted and supported equal treatment for women in the workforce, especially pregnant women and mothers. It has also championed the free movement of workers. This judgment presents the CJEU with its first opportunity to combine these two aspects of EU law, affirming that migrant pregnant women are also fully protected by EU free movement law. As evident in this case, Ms. Saint Prix, like many migrant workers, contributed significantly more to the UK’s tax and benefits system than she received.
Barnard & Peers: chapter 13, chapter 20