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1 January 2003
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It is a moot question whether the protection of pregnant women against unfavourable measures should be extended to pregnancy-related illnesses, i.e. pregnancy-related illnesses that arise before and/or after maternity leave.  The question is whether pregnancy-related illnesses should be dealt with in the same way as other types of illnesses in terms of an employer’s sick leave policy?  This issue is currently being considered by the European Court of Justice (ECJ) following a referral by the Labour Court (Ireland) in the matter of North-Western Health Board v Margaret McKenna.
Ms McKenna found that she was pregnant in January 2000.  She was obliged to take sick leave on medical advice on account of a pregnancy-related illness that lasted for nearly the whole term of her pregnancy.  In terms of the North-Western Health Board sick leave scheme, employees are entitled to 365 days of paid sick leave in a period of 4 years!  It also provides that 183 days absence in a period of 12 months is paid at full pay and the balance is paid at half pay.  Her absences from work during her pregnancy were due solely to that illness and a medical certificate stated she was unfit for work.  As from 6 July 2000, her pay was reduced to half pay because she had exhausted her right to full pay during her sick leave period.  From 3 September to 11 December 2000, Ms McKenna was on maternity leave and received her pay at the full rate.  When that leave expired, her pay was once more reduced by half because Ms McKenna was still unfit for work on medical grounds. 
Ms McKenna argued that she had been the victim of discrimination on grounds of sex.  The Equality Officer of the Office of the Director of Equality Investigations ruled that Ms McKenna’s action was well founded and ordered the Board to amend its sick leave scheme and to pay Ms McKenna the difference in arrear pay and to pay her damages.  The Board then brought an appeal against the decision before the Labour Court.
The Labour Court was of the view that the case comprised of two aspects.  First, whether the complainant had suffered unequal treatment as regards her working conditions because the period of her absence due to a pregnancy-related illness was set off against the total period of her entitlement to sick leave, with the result that the benefits which she might claim if she should fall sick in the following 3 years had been reduced or exhausted in value and duration.  Second, whether the complainant was discriminated against in terms of pay in that she was placed on half pay after the initial 183 days of absence, when the cause of that absence was linked to her pregnancy and could therefore concern women alone.  The Labour Court decided to suspend the proceedings and to refer certain questions to the ECJ for a preliminary ruling.
In South Africa, the legal position is different in certain respects.  In terms of the Basic Conditions of Employment Act (BCEA) an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of 6 weeks during every sick leave cycle, i.e. a period of 36 months’ employment with the same employer.  Thus, a 5-day working employee would be entitled to 30 days paid sick leave over a period of 3 years with the same employer.  In addition, an employee is entitled to at least 4 consecutive months’ maternity leave.   An employer is not obliged to remunerate an employee during her maternity leave and an employee may claim maternity benefits from the Department of Labour in terms of the Unemployment Insurance Act.
The BCEA further requires an employer to take into account the Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child.  The object of the Code is to provide guidelines for employers and employees concerning the protection of the health of women against potential hazards in their work environment during pregnancy, after the birth of a child and while breast-feeding.
Where an employee is absent from work due to a pregnancy-related illness prior to her maternity leave an employer, like in the McKenna case, would have the choice of setting off the days of absence against the employee’s sick leave entitlement or may elect not to do so for compassionate reasons.  As our law currently stands, an employer is not required to distinguish between pregnancy-related illnesses and other types of illnesses.
The Irish and United Kingdom governments and the Board argued that the provisions of the sick leave scheme were not discriminatory because they treat cases of incapacity for work caused by a pregnancy-related illness and those caused by other illness in the same way.  They argued that Ms McKenna sought to benefit from a more favourable scheme than the sick leave scheme under general law, which was not justified.  The Irish and United Kingdom governments emphasised that the position taken up by Ms McKenna would have very damaging financial repercussions for the Member States and it would be very difficult in fact to distinguish in the case of a pregnant woman incapacity for work actually caused by a pregnancy-related illness and incapacity attributable to other illnesses.
The Italian and Austrian governments and the ECJ Advocate General, on the other hand, argued that the provisions in question must be regarded as discriminatory.  It argued that any unfavourable treatment of a pregnant woman which is the consequence of her being pregnant constitutes discrimination on grounds of sex because pregnancy, by its nature, affects women workers alone.  It argued that the trend in the case law is to protect a woman’s biological condition during and after pregnancy.
In terms of our Constitution, no person may unfairly discriminate directly or indirectly against anyone on grounds of pregnancy.  This is reiterated in the Employment Equity Act (EEA); however, it is not unfair discrimination to take affirmative action measures consistent with the purpose of this EEA or to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.  In terms of the Labour Relations Act, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee on grounds of sex or the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy.
Discrimination may be direct or indirect.  Direct discrimination occurs when a person is subject directly to unequal treatment on one or more of the grounds listed in the Constitution or on an unlisted ground.  Indirect discrimination arises when criteria, conditions or policies (eg. sick leave scheme) are applied which appear to be neutral, but which adversely affect a disproportionate number of a certain group, for example, women.  Applying the facts of Ms McKenna’s case to the equality jurisprudence developed by our Courts it can be argued that the sick leave scheme would have a disproportionate effect on women and accordingly indirectly discriminates against women, in particular, pregnant employees.
Once discrimination has been established, the enquiry moves to the second stage of examining whether it is fair or unfair.  Due to the fact that the discrimination is on a listed ground, namely, sex it is presumed to be unfair and the onus will be on the employer to rebut the presumption.  In deciding whether the discrimination is fair or unfair, our courts will consider the position of the complainants in society, whether they have suffered in the past from patterns of disadvantage, the impact of the conduct on the complainant as part of the group and the power in terms of which it was effected.
In the McKenna case, the Advocate General argued that the Courts have held that pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy.  Those disorders and complications which may cause incapacity for work form part of the risk inherent in the condition of pregnancy and are thus a specific feature of that condition.
The Advocate General argued that the pursuit of equality in substance rather than in form involves paying particular attention to the practical consequences for women employees of the application of the sick leave scheme.  The Advocate General argued that the deduction of the employee’s sick leave days in these circumstances constituted a disadvantage that can affect women only and thus makes women suffer a disadvantage in their working conditions on grounds of sex.  Therefore, he argued that this must be considered to constitute direct discrimination in contravention of the European Council Directive governing equal treatment as regards working conditions.
As far as financial consequences are concerned, the Advocate General argued that the Courts have held that financial loss cannot justify direct discrimination on grounds of sex.  Further, the financial consequences are limited to the term of the pregnancy and come to an end when the maternity leave begins.  With regard to the objection based on the practical difficulties of establishing which cases of incapacity are pregnancy related illness as opposed to routine pregnancy related minor complaints, the Advocate General did, however, acknowledge that the distinction may be difficult to draw and may give rise to abuses.
While I do not agree with the Advocate General that the sick leave scheme constituted direct discrimination against women, I submit it can be argued that the scheme constituted indirect discrimination against women.  Whether a court will rule that such discrimination is unfair will involve several public policy considerations; in my humble view, I submit that our courts when applying the factors referred to above will conclude it is unfair.  The ECJ has not given its final verdict although I understand it normally follows the opinion of the Advocate General.  If it does, absence as a result of pregnancy-related illness in the European Community will not be treated in the same way as other types of illness for purposes of calculating sick leave entitlements.  To treat them the same way may be indirectly discriminatory against pregnant women.  It will be interesting to see what stance our courts will take on the matter when, and not if, it comes before them!