Sick pay in maternity leave

Case 8: The facts

Ms McKenna was off sick while pregnant, and had to use up much of her occupational sick pay entitlement as a result. She argued that, by treating her pregnancy-related illness the same as any other illness, her employer had discriminated against her.

Prior to a hearing by the European Court of Justice (ECJ), the advocate general – the ECJ’s top legal advisor – backed McKenna’s claim by finding that her employer’s sick leave scheme amounted to sex discrimination and was contrary to European law.

The ruling

The ECJ ruled that reducing a woman’s pay because she is absent with a pregnancy-related illness is not discrimination – her employer is entitled to calculate her sick pay in the same way as for a man who was absent for any kind of illness.

Since equal pay law does not require women to receive full pay during maternity leave, the ECJ said, reducing their pay if they are absent with a pregnancy-related illness is also permissible.

North Western Health Board v McKenna Case C-191/03 ([2005] IRLR 895)