(1) MS C FLETCHER (2) MRS T PARKES (3) MS S WILKINSON v (1) NHS PENSIONS AGENCY/STUDENT GRANTS UNIT (2) THE SECRETARY OF STATE FOR HEALTH [2005] UKEAT 0424_04_0306

"The NHS has a shortage of midwives and other health professionals. Historically, before Project 2000, midwives in training were employees with maternity rights under employment law. Currently, nurses retraining as midwives, working alongside diploma students during clinical placements, still have such rights. It is odd that the result of enhancing the academic rigour of midwife training has been that their maternity rights have gone backwards in recent years. It is uncomfortable that, in the sensitive context of hospital wards caring for mothers and babies, there is now an absence of a protective regime of maternity leave and maternity pay for trainee midwives on the diploma programme, and their babies."

"The Scheme is made pursuant to s.63 of the Health Service and Public Health Act 1968 which empowers the Secretary of State to make payments to persons undergoing training who are contemplating working in the NHS. The Section (as amended) provides: 'Provision of instruction for officers of hospital authorities and other persons employed, or contemplating employment, in certain activities connected with health or welfare. 63(1) The Minister of Health may, either directly or by entering into arrangements with others, (a) provide, for persons employed or having it in contemplation to be employed as officers or servants of a Health Authority, Special Health Authority, Health Board or Primary Care Trust, such instruction as appears to him conducive to securing their efficiency as such officers or servants; (b) provide, for persons (other than such as are mentioned in the foregoing paragraph) of such class as may be determined by him who are employed, or have it in contemplation to be employed, in an activity to which this paragraph applies, such instruction as appears to him conducive to the efficient carrying out of that activity; and (c) provide material and premises necessary for, or in connection with, the provision of any such instruction as aforesaid.... (5) Instruction under this section may be provided on such terms, including terms as to payment of charges, as the Minister of Health thinks fit. (5A) The Secretary of State may by regulations provide for any functions exercisable by a Health Authority, Special Health Authority or Primary Care Trust under or in relation to arrangements made under subsection (1) above to be exercisable by the Health Authority, Special Health Authority or Primary Care Trust jointly with one or more other relevant health service bodies, and section 126 of the 1977 Act shall apply in relation to regulations made under this subsection as if this subsection were contained in that Act. ... (6) The Minister of Health may, with the approval of the Treasury, (a) make grants and pay fees to persons or bodies with whom arrangements under subsection (1) above are made for the provision of instruction under this section...' 31 When Project 2000 was implemented, s63 was identified as the appropriate enabling function for the Secretary of State for Health to set up the NHS Student Grants Unit. Morecambe Bay Health Authority was appointed to deal with the nationwide student grant arrangements. Directions were made under Ss13 and 17 of the National Health Service Act 1977 requiring Morecambe to undertake the training functions under S63 of the 1968``. The most recent version of the Directions, which came into force in October 1997 provides: 'Exercise by Morecambe Bay Health Authority of the Secretary of State's training functions 2 Without prejudice to the exercise by the Authority of the training functions conferred on it by Directions given in the National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 in relation to the City of Lancaster, and the districts of Barrow-in-Furness and South Lakeland, the Authority shall in addition exercise generally on behalf of the Secretary of State for Health as respects England and on behalf of the Secretary of State for Wales as respects Wales their training functions (being those functions which prior to the coming into force of this direction were carried out by the National Health Services Student Grants Unit) concerned with the calculation of allowances payable under section 63 to persons availing themselves of instruction to which that section applies. Manner in which the functions are to be exercised 3(1) The Authority shall itself exercise the additional training functions conferred by paragraph 2 above, or shall secure their exercise by another NHS body by means of NHS contracts. (2) the additional training functions shall be exercised in accordance with the specifications set out in the Schedule to these Directions. 32 Under paragraph 3(2) of the Directions and the Schedule thereto Morecambe is required to operate the student grants arrangements in accordance with the Education (Mandatory Awards) Regulations 2000. Paragraph 2 of the Schedule provides: 'In assessing, paying and reviewing the Bursaries as above, the Authority shall, subject to such exceptions as the Secretary of State may direct, apply the Education (Mandatory Awards) Regulations 2000 as they relate to 'old award holders' as defined by those regulations, and any regulations replacing those regulations. 33 The Schedule to the Directions (Service Specification) reserves to the Secretary of State responsibility for all policy aspects for the Student Grants Unit. The Secretary of State retains responsibility for policy and legislation related issues, dealing with enquiries and complaints about policy and legislation related to the SGU. 34 Morecambe entered into a service level agreement to undertake the operation of the student grant arrangements with a local NHS Trust, Blackpool Victoria Hospital NHS Trust. Blackpool Victoria was dissolved and Blackpool established on 1 April 2002 by SI 2002 No 1243. From 1 April 2002 the Service Level Agreement has been operated by Blackpool. The Service Level Agreement was initially for a period from 1 October 1997 to 31 March 2001. It then continued for further periods of 12 months subject to a review. The Service Level Agreement in effect mirrors the Directions and requires the service to be operated in accordance with the Mandatory Awards Regulations. 35 On 1 April 2002 Morecambe ceased to exist in consequence of NHS reorganisation. In its place, a number of Primary Care Trusts were established to provide primary care arrangements for health care within the geographical area of the former Morecambe. One of the legislative effects of the abolition of Health Authorities was that the Section 63 functions of the Health Authorities were transferred to the PCTs. 36 The SGU is currently a sub-unit of Blackpool. It operates independently and in accordance with the terms of the Service Level Agreement and the Directions. In practice, the day-to-day administration of the SGU remains unchanged after the transfers of Section 63 functions to PCTs on 1 April 2002."

"37 A diploma student who wishes to apply for a Bursary must send an application form to the SGU. The Bursary is payable provided the student meets the eligibility criteria of being enrolled on a midwifery or nursing course, and being resident in the UK for the purposes of undertaking the course. A diploma student receiving a non-means tested Bursary is not entitled to claim other forms of financial support, such as student loans, access funding and hardship loans and NHS hardship grants. Diploma student midwives in receipt of Bursary are exempted from Council tax. 38 The Bursary comprises tuition fees payable for the year, basic maintenance allowance and also additional allowances if the student is eligible for extra support. The maintenance allowance component is calculated by reference to the academic year running from 1 September to 31 August and is payable to the student in monthly instalments throughout the year. By way of example the level of Bursary awarded to Clare Fletcher for the academic year 2001/2002 was £6,852.00 consisting of a standard £6,232.00 diploma level Bursary for study in London and an Older Student's Allowance of £620.00. A one-off payment of £55 for books was made on enrolment."

"The authority may, after consultation with the academic authority and the commissioner, terminate the award if they are satisfied that the student has either – 1. withdrawn, abandoned, or been expelled from the course in respect of which it is held, and the award does not fall to be transferred under paragraph 19; or 2. shown himself by his conduct to be unfitted to hold the award."

"(4) In respect of any period: (a) after the termination of an award; (b) during which a student is excluded from attendance at the course by the academic authority; or (c) during which a student is absent without leave from his course, any payment in respect of maintenance shall be reduced as described in sub-paragraph 22(6); (5) In respect of any other period, being: (a) one during which a student is absent from his course (other than one of not more than 60 days due to illness); (b) where an award held in respect of one course is transferred under paragraph 19 to another, one during which the student is not required to attend either course (other than the period of a single vacation); or (c) one during which the student is detained under an order made by any court, the authority may, with the approval of the commissioner , reduce any payment in respect of maintenance otherwise due by such amount, not exceeding that mentioned in sub-paragraph 22(6), as having regard to all relevant circumstances they consider appropriate. (6) The amount referred to in sub-paragraphs 22(4) and (5) is the aggregate of - (a) the maintenance grant payable for the year under paragraphs 4(1)(a) and (b)(i) multiplied by the number of days for which the period in question lasted divided by the number of days in respect of which the grant is payable for that year; and (b) such portion of the maintenance grant payable under paragraph 4(1)(b)(ii) as the authority consider appropriate, and in determining the number of days for which a period lasted, they shall disregard the first 60 days of any period of absence due to illness."

"If you become pregnant during the programme you MUST inform your personal tutor and/or programme leader as soon as the pregnancy is confirmed. You will normally be allowed to continue on the programme unless you request otherwise, or unless there are medical grounds which prevent you from doing so... An individual plan of training will then be agreed between you and the Head of Midwifery Education. This will take into account your expected delivery date as well as other considerations such as the due dates for submission of course work. If you are sick or absent excessively from the 29 th week onwards, and it is considered that this is pregnancy related, you may be asked to begin maternity leave earlier than planned. Your plan of training will include the timescale for your maternity leave, and an agreed return date. All students will be required to undergo a health check by Occupational Health to establish fitness for practice before resumption of the programme, but in all cases students will not be permitted to resume practice placements for a minimum of weeks following delivery."

"As discussed during our meeting on 5 February 2002 , you have been off sick since 17 January 2002 and have forwarded a sick letter from your midwife to this fact. You will remain on sick leave until Friday 22 nd of March 2002 and commence maternity leave on Monday 25 th March 2002. As discussed your bursary will not be paid to you from this date but will recommence on your return to the course. I have spoken to Pauline Hammett [the Head of Midwifery and Women's Health Studies] who has asked that you should write to her at the beginning of September 2002, identifying your prospective plan to recommence your training. This letter will allow us to inform you of any changes that have been made to the course which could affect your return."

"Interrupts means those Students who are currently on temporary leave of absence from a Programme, authorised by the Contractor [being UTNS] (other than by way of suspension by the Contractor) to include by way of example maternity leave, paternity leave or compassionate or other leave offered to students at the reasonable discretion of the Contractor or unexplained failure to attend for a maximum period of twelve weeks"

"Maternity Leave Students who become pregnant during the course should consult the Personnel Department for advice at the earliest opportunity. Students will be allowed an appropriate break and then rejoin the course at the point at which they left. Bursaries will not be paid during the period of absence."

"Section 14 SDA 109. Section 14 of the Act, part of the chapter of Part II concerned with 'Discrimination by other bodies', under the Heading "

'(1) It is unlawful, in the case of a woman seeking or undergoing training which would help fit her for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against her - (a) in the terms on which that person affords her access to any training course or other facilities concerned with such training, or (b) by refusing or deliberately omitting to afford her such access, or (c) by terminating her training, or (d) by subjecting her to any detriment during the course of her training (2) Subsection (1) does not apply to - (a) discrimination which is rendered unlawful by section 6(1) or (2) or section 22 or 23, or (c) discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Act.'

'(1) It is unlawful for the Secretary of State to discriminate in the provision of facilities or services under section 2 of the Employment and Training Act 1973. (2) This section does not apply in a case where- (a) section 14 applies, or (b) the Secretary of State is acting as an employment agency.'

'(1) Until 1st September 1983 section 6(1) does not apply to employment as a midwife. (2) Until 1st September 1983 section 6(2)(a) does not apply to promotion, transfer or training as a midwife. (3) Until 1st September 1983 section 14 does not apply to training as a midwife.'" The Respondents had submitted that any claim against the Secretary of State and Blackpool was justiciable only in the County Court, as a claim under Part III of the Act dealing with discrimination in the provision of goods, facilities or services, and in particular under section 29 thereof. The Tribunal's conclusion at paragraphs 275 to 281 was as follows: "275. The Tribunal started from the simple proposition that the SDA was to be read in a manner that was consistent with Community law, in order to safeguard Community rights. The Equal Treatment Directive 76/207/EEC has as its purpose equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions. This pointed to the Tribunal giving a broad meaning to 'vocational training' in Part II, not a meaning derived from the particular political history of training arrangements in the UK over the last 30 years. The allied proposition was that such matters, related to access to employment, fell within the exclusive jurisdiction of the industrial court, the Employment Tribunal. The Tribunal also reminded themselves that this broad purpose of outlawing discrimination in access to employment and giving jurisdiction on such matters to the Tribunal was demonstrated by the structure of Part II. Ss 6 to 10 were under the chapter title '

"The Tribunal inclined to a broader reading of s14 than that urged upon them by the Respondents. On its wording the section was not concerned with just provision of facilities for training but also arrangements for the provision of facilities for training. The wording of s14(1)(a) again pointed to a broad meaning with the use of the phrase 'facilities concerned with such training'. Their view was that this wording pointed to something broader than the physical provision of say libraries and computers. There was nothing in the section to put such limits on the wording: indeed the broad literal wording pointed in the other direction. Ss16 and 29 with their clear broad interpretation of facilities for the Tribunal supported that view. 285. The Applicants said that ss16 and 29 SDA with their references, direct or indirect, to grants and loans as falling within the term 'facilities' supported a broad interpretation of the phrase in s14. The Respondents said the reverse, that in effect facilities had a different meaning depending on its context. The fact that the phrase clearly encompassed grants and loans in ss16 and 29, because of direct or indirect references in those sections, pointed to it not encompassing grants and loans in s14, because of the absence of direct or indirect reference there. The Tribunal preferred the Applicants' argument on this point. It was unattractive for there to be radically different meanings given to the same phrase in the same Act, the meaning only ascertainable, in the case of s16, by reading the Employment and Training Act 1973, not on a reading of the section itself. An element of casuistry seemed involved in saying that grants for training provided under the Education and Training Act 1973 were facilities but grants for training provided under s63 Health Service and Public Health Act 1968 were not facilities."

"286. The Tribunal's view was that, applying a broad purposive meaning to s14, the Secretary of State provided facilities or made arrangements for the provision of facilities. The evidence of Helen Fields emphasised that the Department of Health sets policy for the education and training of midwives, including financial arrangements for student support, including bursaries. They implemented Project 2000 in 1989, and instituted the Making a Difference programme in 1999. The NHS Bursary Scheme is set up to pay allowances 'to persons in training having it in contemplation to be employed in the NHS who attend eligible courses, set up between an institution in England and a commissioner under s63 of the Health Services and Public Health Act 1968..."

"In any way ignoring or minimizing the problems the Applicants and their families experienced in dealing with childbirth in the absence of any maternity benefits."

"…the Tribunal are in no doubt as to the importance of the common policy concerns underlying the Article 141, the EPD, the ETD and the PWD in relation to the special protected status of pregnant women and those on maternity leave. In practical terms the situation of these Applicants demonstrates very clearly the basis of those concerns. For example the efforts of Tracey Parkes to do extra clinical placements during pregnancy, to avoid going on maternity leave until the latest possible moment, not to stop the academic component of her course at all, and to do extra workings on return to work with a young baby, do not sit well with those policy concerns. 115 However the Tribunal cannot merely approach this case by reference to these underlying policy concerns. They have to consider the very particular situation of these Applicants as students, not workers, not claiming discrimination in their 'working environment' against their Universities or Hospitals, but claiming discrimination in relation to the provision of facilities for vocational training, in connection with the Bursary Scheme, as adopted by the Secretary of State and operated by Blackpool."

"116. The Tribunal addressed first the assertion that it was less favourable treatment not to continue bursary payments during maternity leave, whether the claim was put ambitiously on the basis of continuation of bursary throughout maternity absence, or on the narrower basis, apparent in the schedule of loss, of 60 days' bursary, the equivalent of the 'sick pay' entitlement under the Scheme. They noted in passing that Clare Fletcher, being already pregnant when she started her course, was in effect on this formulation, claiming maternity pay at the level of full pay, without a service qualification, more than an employee could demand under the UK maternity regime set out in the ERA and Social Security legislation. This underlined for the Tribunal the ambitious nature of the claim. 117. The Tribunal reminded themselves that, on the facts, female students going off on maternity leave were treated in exactly the same way as any other students, male or female, who interrupted their studies. Applying the European definition of discrimination as enunciated in Gillespie : '16 It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations:... Here the Tribunal were looking for discrimination in the sense of applying the same rules to pregnant women interrupting their course as were applied to others when their situations were not comparable: was this discrimination on account of failing to protect their special status as pregnant women, as summarised by Brown at paragraph 17: '...protecting a woman's biological condition during and after pregnancy and, secondly, ...protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.'? 118. The Tribunal's starting point was that Webb ruled out a comparison between sickness and pregnancy: '24 ...there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons...' 119. Further they noted that two of the Applicants, Clare Fletcher and Tracey Parkes, had benefited from the maximum 60 day sickness entitlement in relation to pregnancy-related illnesses outside - their maternity leave period. Any comparison the Tribunal sought to draw had to focus on the maternity leave period itself. 120. They found it vital to take into account that the Applicants, not being employees or workers, did not fall within the terms of Article 141, the EPD or the PWD. They only fell potentially within the terms of the ETD on account of their involvement in vocational training. The PWD, as the most recent, far-reaching, statement of the pregnancy rights of workers does not, by article 11, require of an employer a continuation of normal pay rates or indeed of contractual rates of pay equivalent to those paid to sick employees. As Boyle stated: "35 However, although article 11(2)(b) and (3) requires the female worker to receive, during the period of maternity leave referred to in article 8, income at least equivalent to the sickness allowance provided for under national social security legislation in the event of a break in her activities on health grounds, it is not intended to guarantee her any higher income which the employer may have undertaken to pay her, under the employment contract, should she be on sick leave..". 121. Further Boyle makes clear that the obligation under Article 11 PWD is for the individual to receive a level of maternity income from employer and state sources taken together: "33 Female workers must be guaranteed an income of that level during their maternity leave, irrespective of whether, in accordance with article 11(2)(b) of [the PWD], it is paid in the form of an allowance, pay or a combination of the two...." 122 .The ETD, in stark contrast, provides only permissively for special treatment in relation to pregnancy and childbirth in Article 2: '3 This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity...' 123. Further there are clear statements in Gillespie and Boyle that the ETD cannot be used on pay issues: Gillespie states: '23 The national court also asks whether Directive (76/207/EEC) applies to the facts of the case. 24 In that regard, it should be borne in mind that the benefit paid during maternity leave constitutes pay and therefore falls within the scope of article 119 of the EEC Treaty and Directive (75/117/EEC). It cannot, therefore, be covered by Directive (76/207/EEC) as well. That Directive, as is clear from its second recital in the preamble, does not apply to pay within the meaning of the above-mentioned provisions.' Boyle states: '38 Since the consideration paid by an employer under legislation or an employment contract to a woman on maternity leave is based on the employment relationship, it constitutes pay within the meaning of article 119 of the Treaty and article 1 of [the EPD]...It therefore cannot also fall within the scope of [the ETD].' 124 .So, on an analysis of the interrelation intended between Article 141, the EPD, the PWD and the ETD, and comments in the case law regarding their inter relation, the Tribunal found very difficult any argument that relies on the ETD to found claims to maternity pay. 125.The Tribunal found that the principles to be derived from the cases supported their view that the ETD could not be used to support a claim to full pay, or sick pay, during maternity leave. Gillespie rejected such a claim by reference to Article 141 and the EPD: '20 That being so, it follows that at the material time neither article 119 of the EEC Treaty nor article 1 of Directive (75/117/EEC) required that women should continue to receive full pay during maternity leave. Nor did those provisions lay down any specific criteria for determining the amount of benefit to be paid to them during that period...' 126 .The conclusion of the EAT in Banks was that: '...although any statutory maternity pay received by a woman on maternity leave was 'pay' within the meaning of article 119 of the EC Treaty, and she must not be deprived of all the rights and benefits she would have received had she not required the break, that did not mean that she was entitled to be paid what she would have received had she been at work;...' 127.How far could Brown help the Applicants? The Tribunal felt it could not. Brown was about dismissal of an employee, by reference to the ETD. This case was about continuation of bursary during the absence from their course of students. They were not "dismissed" in the sense that the evidence indicated that their bursary started again, without reapplication, when they were ready to resume their studies. Other cases pointed very firmly to the ETD not being used for pay issues. How then could the Tribunal use Brown to leapfrog all the limitations on the European right to maternity pay described above? 128 .What about Pedersen ? Yes Pedersen referred to the ETD in attacking a difference in pay treatment between a sick man and a pregnant woman not yet on maternity leave, on the basis that men and women must enjoy the same working conditions but the Danish legislation permitted a woman who is pregnant to be sent home without her full salary because work could not be provided for her. This seemed to the Tribunal difficult to reconcile with some of the earlier cases on the non applicability of the ETD to pay if the view was taken that the ECJ had reached their conclusion by reference to the ETD alone. However the Tribunal noted that the ECJ judgment seemed to say that the Danish legislation did not fall within the exception for positive treatment of pregnancy and maternity in Article 2(3) of the ETD but then to rely also on the PWD in arriving at their conclusion that the Danish legislation was contrary to European law. So could Pedersen be used to justify comparing a sick man and a pregnant woman on maternity leave where only the ETD and not the PWD was applicable? This would fly in the face of the fundamental principles regarding the invalidity of a comparison of a sick man and a woman on maternity leave. It contradicted Gillespie , Boyle and Banks if it was used to require maintenance of full pay during maternity leave. To rely on Pedersen for this purpose would also entail accepting the proposition that the ETD applies to the working conditions of students who are not workers. 129. In the light of their view that the ETD is not applicable to pay it does not seem imperative for this Tribunal, on the facts of these cases, to answer definitively the question whether the ETD applies to working conditions of students undergoing vocational training, who do no come within the European definition of workers. Counsel admitted that was a Greenfield issue. Tentatively however the Tribunal reached the view that to apply the working conditions obligations of the ETD to students who are not workers is a policy step for the EU, not a matter of broad purposive interpretation of the ETD. The Tribunal were influenced towards this view by the language of the directive, which refers to access to vocational training but not clearly at any point to working conditions within vocational training. Articles 3 and 4 are mirror provisions concerning access to jobs and vocational training. Article 5 regarding working conditions has no mirror provision. The Tribunal were mindful that for the ETD to regulate working conditions in a non-employment context would add very significantly to the scope of the ETD: they would expect clear words to support such a big step. 130. For completeness the Tribunal should add that s14 SDA seems to apply to events in the course of training. It refers to a woman 'undergoing training', it refers to 'terminating her training' in sl4(1)(c) and to subjecting her to any detriment 'during the course of her training' in s14(1)(d). This raises the possibility that s14 goes further than the ETD in relation to protection during vocational training, as well as in relation to access to it. However this possibility does not affect the Tribunal's decision in this case because of their view that non payment during maternity absence does not constitute less favourable treatment. 131. So, finally, the Tribunal considered Hardman . Hardman was very obviously about core working conditions: health and safety risk assessments. This contrasted with this case which was about pay. Hardman was not for the Tribunal a sufficient foundation for the bold leap being demanded of the Tribunal, to require continuation of full pay during maternity leave. 132.The Tribunal's conclusion, after their examination of the European position, was that treating these Applicants in the same way as other students who interrupted their courses, ceasing bursary payments when attendance at their courses ceased, was not less favourable treatment. There was not an obligation in relation to these women to maintain their bursary when they ceased to attend their course on account of their special protected status as pregnant women. It was not valid to reintroduce the concept of comparison of a pregnant woman with a sick man for these students, in reliance on Pedersen: that flew in the face of too many other authorities and legislative provisions. 133.It was not therefore strictly necessary to proceed to a consideration of whether the Applicants had suffered a detriment. In the case of Tracey Parkes the Tribunal were not satisfied that a causal link could not be established between the actions of the Respondents and the detriment suffered by Tracey Parkes as the Respondents were not told at the relevant time of her pregnancy. Her choices in relation to how she dealt with the absence of bursary for maternity leave were taken by reference to options provided to her by her course tutor. Further, as it was not less favourable treatment not to offer maternity pay, Tracey Fletcher was not discriminated against in the terms on which she was afforded access to training or other facilities, contrary to s14(1)(a) SDA. 134.The Tribunal were not persuaded more generally that the fact of treating pregnant midwives interrupting their course to go on maternity leave in the same way as other students interrupting their course by ceasing their bursary when they ceased to attend amounted to a detriment. That was the way the Applicants put their case and it did not persuade the Tribunal. The Tribunal might have been persuaded of detriment if the matter had been pleaded in a different fashion. For example if, as arose in the course of argument, it had been put on the basis of how Clare Fletcher was treated as 'withdrawing' from her course when she went on maternity leave. But that was not the case before this Tribunal 135. The Tribunal's examination of European case law had taken them a long way away from s14 SDA. The Tribunal's conclusions by reference to European law were reinforced by a return to s14. It would be an odd conclusion, if there was not an obligation under sex discrimination law on employers to provide maternity pay at the level of normal pay, and, as indicated by Banks , there was not an obligation on the State, to pay SMP and MA below qualifying thresholds, that the Secretary of State for Health and Blackpool were discriminating unlawfully if their arrangements for the provision of bursary facilities failed to continue bursary during maternity leave. It could not be right that it was within the terms of s14 SDA and the powers of the Tribunal to impose on the Secretary of State and Blackpool obligations to create a maternity pay arrangement that went beyond the maternity pay provisions required of employers and the State."

"136. The Tribunal then turned to the reassessment issue. The crucial factual matter for the Tribunal in relation to this aspect of the case was that, as in relation to the stopping of bursary when students ceased to attend their course, here the evidence pointed to a consistent treatment of all interrupts. Clare Fletcher's understandable sense of grievance arose from the anomalies of the reassessment mechanism. It was completely unobvious that, in the first year of study a reassessment took back ordinary maintenance for the days between the beginning of the academic year and the commencement of the course but did not take back special allowances. Blackpool were evasive, both in correspondence and during the proceedings, on the point that if they took back the ordinary maintenance for the first 17 days of the course there was a lack of coverage for the 16/17 last days of the course, in the absence of an exercise of the discretion to pay for overruns. 137. Further, on the facts, the Tribunal were satisfied that the nature of the reassessment was to calculate entitlement. In Shelley Wilkinson's case that exercise had resulted in an extra payment to her when she went on maternity leave. On the facts of Clare Fletcher's case it resulted in an overpayment being identified. This comparison identified that the precise nature of Clare Fletcher's complaint was that the result of a reassessment in her case had been identification of an overpayment, rather than an underpayment or a neutral position. It also posed the question whether the logic of Clare Fletcher's argument was that there should be a reassessment when someone went on maternity leave. However an underpayment should be cured immediately but an overpayment not dealt with until the student returned to their course or failed to do so after some defined period. 138. That comparison also identified that pregnancy and maternity leave per se were not the cause of the detriment that Clare Fletcher complained of. The cause of her sense of grievance was the anomalous, non-transparent operation of the reassessment principles of the Scheme. 139. On this factual analysis the Tribunal again did not find less favourable treatment made out. Boyle pointed clearly to recovery of maternity pay in excess of statutory minima not being unlawful discrimination: 'article 119 of the EC Treaty, article 1 of Directive 75/117/EEC and article 11 of Directive 92/85/EEC did not preclude a clause in an employment contract which made the payment, during the period of maternity leave referred to by article 8 of Directive 92/85/EEC, of pay higher than the statutory payments in respect of maternity leave conditional on the worker's undertaking to return to work after the birth of the child for at least one month, failing which she was required to repay the difference between the amount of the pay received during the period of maternity leave and the amount of those payments.' 140. In the Clare Fletcher case there was a clause in the bursary contract providing for recovery. How could it be unlawful discrimination under the ETD to reassess in accordance with entitlements if it was not unlawful under Article 141, the EPD and the PWD, as indicated by Boyle ? The reassessment was again a payment issue. How could the obligation not to seek recovery of pay be higher under the ETD than under Article 141, the EPD and the PWD, when the case law pointed to the ETD not being applicable to pay issues? 141. There was detriment made out on the facts. Clare Fletcher was notified of an obligation to repay bursary, including the 17 days advance payment that would otherwise cover the last 16 days of her course. But the detriment was not caused by pregnancy or maternity leave, by less favourable treatment. It was a result of the anomalous, consistent reassessment process."

"Article 3 1. Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to- (a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations."

"It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations: see in particular Finanzamt Köln-Altstadt –v- Schumacker (Case C-279/93) [1996] QB 28 ."

'Whether Articles 1(1), 2(1), 5(1) and, if relevant, 2(4) of Council Directive 76/207/EEC of 9 February 1976 must be interpreted as meaning that a woman may not be deprived of the right to an assessment of performance, and consequently to the possibility of an advancement in career, on the ground that she was absent from work by reason of maternity leave?'

'Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as meaning that it precludes a neutrally-worded national provision contained in a collective agreement, under which an employee who proves at least six months' attendance at work must be the subject of an assessment of performance by his or her immediate superiors, but which, when applied in practice, produces direct discrimination on grounds of sex in so far as it allows maternity leave to be counted as sick leave for the purpose of calculating the time spent at work by a female employee.' …. The European Court of Justice held: A woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion to a higher pay grade as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Equal Treatment Directive. National provisions allowed by the Directive conferring pregnancy and maternity rights, such as maternity leave, are intended to ensured substantive equality between men and women regarding both access to employment and working conditions. Therefore, the exercise by women of pregnancy and maternity rights cannot be the subject of unfavourable treatment regarding their access to employment or their working conditions. The principle of non-discrimination on grounds of sex in working conditions requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship. In circumstances such as those in the present case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question." At paragraph 17 of the Advocate General's Opinion he stated: "17 The United Kingdom is of the opinion that Mrs Thibault was not the victim of discrimination on grounds of sex, for four reasons: first, because the reason for which an assessment of performance was not drawn up for her relates to her absence from work; second, because the situation of a woman who is absent from work as a result of taking maternity leave cannot be compared to that of a man or woman who is working; third, because the determination of all rights extended to women during maternity leave is a matter for the Member States, without prejudice to the provisions of Directive 92/85/EEC; 4 and, finally, because Directive 76/207 does not confer any right to have periods of absence by reason of maternity counted as periods of work which could give rise to entitlement to an assessment of performance. It proposes that the Court should reply to the national court that, where a worker's right to have an assessment of performance drawn up for him or her in relation to a particular period is subject to proof of his or her attendance at work for a minimum length of time, Directive 76/207 does not require the employer to make such an assessment in the case of a female worker who, having taken maternity leave, was not at work for that minimum period. …. 19 In view of the conflicting positions adopted, I will say at the outset that I disagree totally with the opinions put forward by the United Kingdom and with the solution proposed in its written observations, and that, conversely, I agree with most of the arguments put forward both by the French Government and by the Commission. …. 21 With regard to the protection of working women who are pregnant or have recently given birth, Article 2(3) of Directive 76/207 allows Member States to adopt provisions which introduce different treatment. In its judgment in the Hofmann case, 7 the Court held that '... by reserving to Member States the right to retain, or introduce provisions which are intended to protect women in connection with "pregnancy and maternity'" the Directive recognises the legitimacy, in terms of the principle of equal treatment, of protecting a woman's needs in two respects. First, it is legitimate to ensure the protection of a woman's biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth ...'

'On closer inspection ... the provisions adopted in implementation of Article 2(3) of the Directive cannot properly be called derogations from the principle of equality, in that they seek rather to ensure that that principle operates in substance, by permitting such "inequalities" as are necessary in order to achieve equality. In short, different treatment is allowed or imposed, in favour of and to protect female workers, in order to arrive at material and not formal equality, since that would constitute a denial of equality.' 8 23 However, this case is concerned not with national provisions for the protection of women, adopted on the basis of Article 2 (3) of Directive 76/207, but with the application of the principle of equal treatment as regards access to employment and working conditions, laid down in Article 5(1) of the Directive. 24 In interpreting Directive 76/207, the Court has established clear and consistent case law setting out its views on unfavourable treatment received by a woman in the labour market because of the fact that she is pregnant. …. 29 Like the Commission, I note that that rule, which requires a minimum of six months' attendance at work in order for a right to an assessment of performance to arise, lays down a neutral criterion which applies equally to men and women and is not bound, in principle, to affect either group adversely since all are likely, for example, to be absent on account of illness. However, in reality, it is obvious that that rule is liable to operate consistently to the disadvantage of women since it allows the employer to refuse to assess a female employee whose absence during the year under consideration was due, in large measure, to the fact that she took maternity leave. …. 32 I conclude that, by being applied equally to different situations, the rule in the collective agreement produces discriminatory effects. Consequently, in order to achieve the equal treatment sought, it will be necessary to treat unequally that which is, in fact, different. 33 For that reason, since the substantive equality between men and women as regards employment precludes any consideration, either when they take up employment or during the employment relationship, of a factor which – by definition - affects only women, 13 it will not be possible, when calculating the attendance at work of a female employee in order to establish a right to an assessment of performance, to add the period of maternity leave either to periods of sick leave or to absences justified for any other reason. …. 35 At the hearing, the United Kingdom argued in favour of the applicability to this case of the precedent established by the Court in its judgment in the Gillespie case, 14 according to which '... women taking maternity leave provided for by national legislation ... are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work.'

"13 It is submitted on behalf of the applicant that the tribunal paid no attention to critical aspects of the Sex Discrimination Act. In particular, the tribunal engaged in an analysis of what is known in the academic and practitioner publications, as the 'hypothetical male'. The tribunal said this of the Sex Discrimination Act: 'Section 6 ... provides that it is unlawful for an employer to discriminate against an employee by subjecting her to a detriment. However, it is clearly the case that the employer must "discriminate" which is defined in s.1 of the Act as treating an employee less favourably than he treats or would treat a man (on the ground of her sex). Here, [the respondent] had not treated [the applicant] in any way differently from the way in which she would have treated a man (or indeed a woman who was not pregnant). She would not have (and indeed had not) produced risk assessments in respect of any of her employees. What, it appeared to us, we were being asked to do was to widen the definition of discrimination to encompass a failure of an employee to treat a woman more favourably than a man. It was candidly conceded on behalf of the applicant that this would amount to positive discrimination. Not only is positive discrimination (except in very limited circumstances) frowned upon, the wording of s.1 is simply not capable of such an interpretation. It follows from this that we conclude that the failure of [the respondent] to undertake an assessment does not amount to an unlawful act of discrimination.' Ms Gill points out the unfairness of using the words 'a candid concession' in respect of an applicant unrepresented as she was, and indicates the very narrow focus of the employment tribunal in looking at the limited circumstances in which positive discrimination is frowned upon. As is clear from the citation from the statute we have given above, special treatment is required to be considered and comes within s.2(2), and consideration of the relevant circumstances under s.5(3). Further, there is specific provision in s.51 for special measures, none of which appears to have been at the forefront of the tribunal's mind when it made that judgment. One, of course, bears in mind that neither party was represented. 617, 637, 3000 14 In our judgment, the proper approach is to construe those statutes by reference to the Equal Treatment Directive and to the Pregnant Workers Directive. It is not necessary for the treatment by the respondent of the applicant to be compared with the respondent's treatment of a comparable male employee, or a non pregnant female employee - see Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] 1RLR 645. In the context of the dismissal of a pregnant employee on the grounds of her pregnancy, the House of Lords, applying the judgment of the European Court of Justice on a reference by the House, found that pregnancy was a relevant circumstance within the meaning of s.5(3), with the consequence that no comparison with a male employee was necessary. Thus, if the basis of the treatment is pregnancy, it is unlawful, irrespective of the respondent's comparable treatment of men, or for that matter, non-pregnant women. Application of the Webb principle was provided in Brown v Rentokil Ltd (1998] IRLR 445 and Pederson [1999] IRLR 55. The former is a dismissal case; the latter is a case of disparate treatment of, on the one hand illness, and on the other, pregnancy. 15 The proper approach in the construction of applicable treatment is to consider not just dismissal but working conditions. We hold that the scope of the judgment of the European Court in [Brown] albeit directed at dismissal, is wide enough to include working conditions and to require consideration of the special protection which is to be given to women during and after pregnancy - see paragraphs 14 to 22 of the judgment. As the Court puts it, the protection of a woman's biological condition during and after pregnancy indicates a special relationship which has to be protected. One way in which it is protected is by carrying out a risk assessment pursuant to the Management Regulations. Failure to do so impacts disparately on pregnant workers. It is, of course, a duty on all employers to carry out a risk assessment but in respect of a pregnant worker a failure to carry out such a risk assessment, in our judgment, is discrimination. It is the application of the same rule in different situations having an unfavourable impact on a particularly protected worker, here, a pregnant worker. Thus, direct application of the second part of the European Court's judgment to the answer to the first question in paragraphs 30 and 31 indicates discrimination."

"(4) In our view, the distinction made by the tribunal between pregnancy per se and pregnancy in the circumstances of this case is legally erroneous. The tribunal may have been led to draw such a distinction as a reflection of the perceived subjective motives of the governors advanced by them in their submissions. The 1975 Act requires the industrial tribunal to decide a case of sex discrimination by having regard to the question whether the treatment complained of was on the ground of sex, not by having regard to the subjective motives of the alleged discriminator. (Consideration of motives is to be avoided.) Dismissal for pregnancy is on a ground of sex. Pregnancy is unique to the female sex. The concept of 'pregnancy per se' is misleading, because it suggests pregnancy as the sole ground of dismissal. Pregnancy always has surrounding circumstances, some arising prior to the state of pregnancy, some accompanying it, some consequential on it. The critical question is whether, on an objective consideration of all the surrounding circumstances, the dismissal or other treatment complained of by the applicant is on the ground of pregnancy. It need not be only on that ground. It need not even be mainly on that ground. Thus, the fact that the employer's ground for dismissal is that the pregnant woman will become unavailable for work because of her pregnancy does not make it any the less a dismissal on the ground of pregnancy. She is not available because she is pregnant. Similarly, in the present case, the other factors in the circumstances surrounding the pregnancy relied upon as the 'dominant motive' are all causally related to the fact that the applicant was pregnant - the paternity of the child, the publicity of that fact and the consequent untenability of the applicant's position as a religious education teacher are all pregnancy-based or pregnancy-related grounds. Her pregnancy precipitated and permeated the decision to dismiss her."

"17. The present case is concerned with women taking maternity leave provided for by national legislation. They are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work. 18.As to whether Community law requires women on maternity leave to continue to receive full pay or lays down specific criteria determining the amount of benefit payable during maternity leave, Council Directive (92/85/E.E.C.) of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of article 16(1) of Directive (89/391/E.E.C.)) provides for various measures to protect, inter alia, the safety and health of female workers, especially before and after giving birth. Those measures include, as regards rights connected with contracts of employment, a continuous period of maternity leave of at least 14 weeks, including compulsory maternity leave of at least two weeks, and maintenance of a payment to, and/or entitlement to an adequate allowance for, female workers covered by the Directive. 19. However, that Directive does not apply ratione temporis to the facts of the present case. It was therefore for the national legislature to set the amount of the benefit to be paid during maternity leave, having regard to the duration of such leave and the existence of any other social advantages. 20. That being so, it follows that at the material time neither article 119 of the E.E.C. Treaty nor article 1 of Directive (75/117/E.E.C.) required that women should continue to receive full pay during maternity leave. Nor did those provisions lay down any specific criteria for determining the amount of benefit to be paid to them during that period. The amount payable could not, however, be so low as to undermine the purpose of maternity leave, name , the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take account, not only of the length of maternity leave, but also of the other forms of social protection afforded by national law in the case of justified absence from work. There is nothing, however, to suggest that in the main proceedings the amount of the benefit granted was such as to undermine the objective of protecting maternity leave. 21. As to the question whether a woman on maternity leave should receive a pay rise awarded before or during that period, the answer must be "

"76 Under the current case law, the Court applies the principles of equal pay and equal treatment outside the period of maternity leave only. 77 Thus the Court has held that the principle of non-discrimination precludes refusing to enter into a contract of employment with a female worker on account of her pregnancy; [ Dekker ] dismissal of a female worker for the same reason; [ Webb ] dismissal of a female worker for absences due to incapacity for work caused by illness resulting from her pregnancy; [ Brown ] an employer's refusal to allow a woman to return to work on the ground that she failed to inform her employer that she was pregnant before signing the contract of employment; [ Bush [2003] IRLR 625] and a rule that deprives a woman of the right to an assessment of her performance because she was absent from the undertaking on account of maternity leave. [ Thibault ] 78 Similarly, the Court has found that the principle of equal pay precludes an employer, when granting a Christmas bonus, from taking a woman's absence on maternity leave into account so as to reduce the amount thereof. [ Lewen [2000] IRLR 67] The Court also takes the view that the principle of equal pay demands that a woman continue to receive full pay where she is unfit for work before her maternity leave by reason of her pregnancy, if men who are unfit for work have that right. [ Pedersen ] 79 It is clear that these various different events - recruitment, dismissal, return to work, assessment, bonus payments, sick leave - occur outside the period covered by maternity leave. 80 However where the woman is on maternity leave the court no longer applies either the principle of equal pay or the principle of equal treatment. It seems on the contrary that it considers the position in the light of the provisions of Directive 92/85 alone."

"41 It must be observed in this connection that under Article 1 of Directive 75/117 the principle of equal pay for men and women for equal work enshrined in Article 119 of the Treaty, which was applicable at the time of the facts in the main proceedings, means that for the same work or for work to which equal value is attributed all discrimination on grounds of sex with regard to all aspects and conditions of remuneration must be eliminated. 42 Regarding first the concept of pay in the aforementioned provisions, according to the definition in the second paragraph of Article 119 of the Treaty it includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of that article, provided that it is granted in respect of employment (see case 12/81 Garland [1982] IRLR 111, paragraph 10, and Gillespie, paragraph 12). 43 Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (see case C-360/90 Bötel [1992] IRLR 423, paragraphs 14 and 15, and Gillespie, paragraph 13 and the cases cited therein). 44 It follows that, since the benefit paid by an employer under legislation or collective agreements to a woman on maternity leave is based on the employment relationship, it constitutes pay within the meaning of Article 119 of the Treaty and Directive 75/117 (Gillespie, paragraph 14, and case C-411/96 Boyle and others [1998] IRLR 717, paragraph 38). 45 Secondly, the Court has consistently held that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, case C-279/93 Schumacker [1995] ECR 1-225, paragraph 30, and Gillespie, paragraph 16). 46 In that connection women taking maternity leave provided for by national legislation are in a special position which requires them to be afforded special protection, but which is not comparable, in particular, either with that of a man or with that of a woman actually at work (Gillespie, paragraph 17). Therefore they cannot usefully rely on the provisions of Article 119 of the Treaty to argue that they should continue to receive full pay while on maternity leave as though they were actually working, like other workers (Gillespie, paragraph 20). 47 However the Court found, thirdly, at paragraph 22 of Gillespie, that benefit paid during maternity leave is equivalent to a weekly payment calculated on the basis of the average pay received by the worker at the time when she was actually working and which was paid to her week by week, just like any other worker. The principle of non-discrimination therefore requires that a woman who is still linked to her employer by a contract of employment or by an employment relationship during maternity leave must, like any other worker, benefit from any pay rise, even if backdated, which is awarded between the beginning of the period covered by reference pay and the end of maternity leave. To deny such an increase to a woman on maternity leave would discriminate against her since, had she not been pregnant, she would have received the pay rise. 48 It follows that in a case such as that in the main proceedings where the income guaranteed by national law to the worker is calculated partially on the pay received by her before her maternity leave, Article 119 of the Treaty entitles her to have a pay rise which was awarded to her after the beginning of the period covered by the reference pay and before the end of maternity leave taken into account in determining the elements of her pay used to calculate the consideration paid by her employer. 49 The requirement recalled in paragraph 22 of the judgment in Gillespie means that any pay rise awarded after the beginning of the period covered by her reference pay must be included in the elements of pay used to determine the amount of pay owed to the worker during her maternity leave, and, contrary to the contention of the United Kingdom Government, should not be limited to cases where the pay is backdated to that period. 50 In the light of the foregoing, the reply to the first and second questions must be that Article 119 of the Treaty must be interpreted as requiring that, in so far as the pay received by the worker during her maternity leave is determined, as least in part, on the basis of the pay she earned before her maternity leave began, any pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay. This requirement is not limited to cases where the pay rise is backdated to the period covered by the reference pay."

"Community law entitles Member States to make special provisions for women who are absent work because of pregnancy or confinement. The provisions that are made then become a separate code. The code provides pregnant women with special protection, but when in receipt of payments under the code their position cannot be 'compared' with that of a man or with that of a woman in work"

"50 Finally, therefore, the nature of the leave actually taken by Mrs Sass must be considered in order to determine whether it can be regarded as equivalent to a period of protection like that provided for by the MuSchG, intended to protect a woman who has given birth. 51 If so, that leave should have been taken into account in the calculation of the qualifying period in the same way as a period of protection would be, that is to say, in its entirety. If it were not taken into account, Mrs Sass would be subject to unfavourable treatment because of her absence on maternity leave and, therefore, would suffer discrimination on the grounds of sex within the meaning of Directive 76/207 in that she will not attain the higher salary grade until 12 weeks after a male colleague who started work in the former GDR on the same day as she did."