European indulgence in fundamental principles

In case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions (1st Chamber, 19 June 2014), the European Court of Justice clarified the circumstances
in which a woman who temporarily stops work, or looking for work, to have a
child will remain a ‘worker’
for the purposes of EU law.

Saint Prix is French and came to the UK in 2006. During the 2006/2007 academic year, she worked as a teaching assistant. In the following year, she enrolled for a PGCE (teacher training) course at the University of London.

She became pregnant, so
did not complete the course,
and obtained some temporary agency work as a teaching assistant. A couple of months before the baby was due, she claimed income support, which was refused. Three months
after her child was born, she returned to work.

Saint Prix’s entitlement to income support depended on whether, by temporarily giving up work for the birth of her child, she had ceased to be a worker for the purposes of article 45 TFEU and article 7 of directive 2004/38.

This simple question divided the UK courts. Saint Prix obtained a favourable result in the First-tier Tribunal, she lost in the Upper Tribunal and the Court of Appeal then the Supreme Court referred the matter to the CJEU.

Article 7 of directive 2004/38 expressly provides for certain situations, originally derived from the case law, in which a person remains a worker for EU purposes even though they are not actually working: temporary inability to work because of ‘illness or accident’, vocational training, and involuntary unemployment.

It does not expressly deal with pregnancy, which EU law does not equate with illness.

The CJEU held that it was necessary to go back to first principles. The concept of the worker under EU law comes, first and foremost, not from
any specific definition in the directive, but from the elaboration, over many decades, of a concept that
forms a fundamental aspect
of the treaties themselves.

Case law establishes that, although in general a person who stops work ceases to be a worker, that is not always so. Some extensions are necessary to provide adequate protection for fundamental rights.

The fact that the directive did not specifically address the case of a woman who gives up work in view of the imminent birth of a child could not be regarded as conclusive. Its categories are
not exhaustive.

Once that conclusion
was reached, it came as no surprise that the CJEU held
that Saint Prix was entitled to protection. If pregnancy might result in the loss of a status on which fundamental rights depend, it might deter women from exercising rights of
free movement.

Although the court’s reasoning did not focus on
the point, it would also risk constituting a form of sex discrimination as it would be
an impediment that would particularly affect women.

However, the right is not unlimited: it extends only to someone who ceases work at a reasonable time before their child is born, and who returns
to work (or attempts to do so) within a reasonable time after the birth. The court did not
lay down a specific period,
but did suggest that account should be taken of the normal periods of maternity leave allowed under EU and
national law.

The decision in Saint Prix
is in line with the approach consistently taken to the definition of ‘worker’ under
EU law, which reflects the realities of the modern workforce, and declined
to deprive citizens of their
rights because of reasonable short-term gaps in their employment records.

The directive was drafted narrowly, but the CJEU predictably and correctly put fundamental principles first. 

SJ

Paul Stanley QC is a barrister practising from Essex Court Chambers