Pay during maternity leave

Case 8: The facts

Just before starting her maternity leave Michelle Alabaster received a pay increase. However, her Statutory Maternity Pay was calculated on her earnings prior to the increase because the legislation lays down that the reference period for calculation is the average of eight weeks' pay ending in the fifteenth week before the baby is due. The EAT, uncertain as to the interpretation of European law, referred the matter to the European Court of Justice (ECJ). At the end of September 2003 the Advocate General, the Court's legal officer, gave his opinion on the claim. The Advocate General normally issues an opinion on each case but the Court does not have to follow it.

The opinion

The Advocate General said that rights to pay during maternity leave are not based on equality or discrimination laws but on a 1985 European directive which aims to protect the health of pregnant and breastfeeding women. The directive effectively requies that women on maternity leave must have their maternity pay calculated on their actual earnings at the date when they began their leave. Furthermore if pay is increased while they are on maternity leave, then their maternity pay should be up-rated to take this into account. The ECJ has yet to hear the case but usually follows the opinion of the Advocate General.

* Alabaster v Woolwich C-147/02