Workers – Freedom of movement – Social security – Income support

Saint Prix v Secretary of State for Work and Pensions: Supreme Court (Lords Neuberger P, Mance, Kerr and Reed, Lady Hale): 31 October 2012

The claimant was a female French national and a qualified teacher. She came to the UK in July 2006 and worked mainly as a teaching assistant from September 2006 to August 2007. She then enrolled on a post-graduate certificate in education course. However, she became pregnant and withdrew prior to completion of the course. The claimant then undertook agency work in nursery schools.

By 12 March, when she was nearly six months’ pregnant, the demands of caring for nursery school children became too strenuous and she stopped work. The claimant sought to find lighter work but none was available. On 18 March, she made a claim for income support about 11 weeks before her expected date of confinement. The secretary of state refused her claim. The claimant's baby was born prematurely on 21 May 2008 and she returned to work three months later. The claimant brought proceedings alleging that her claim for income support had been wrongly refused.

The decision turned primarily on the interpretation and effect of article 7 of Council and European Parliament Directive (EC) 2004/38 (on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states) (the Directive). The First-tier tribunal allowed the claimant’s appeal against the refusal of income support. However, the Upper Tribunal allowed the appeal of the secretary of state.

The Court of Appeal held, inter alia, that 'worker' in article 7 of the Directive could not be construed to include a person who had no contract of employment, was not therefore on maternity leave, and was not working by reason of pregnancy. It further held that there had been no direct discrimination against the claimant. Accordingly, the Court of Appeal dismissed the appeal (see [2011] All ER (D) 120 (Jul)). The claimant appealed to the Supreme Court.

The issue for consideration was whether a pregnant woman who temporarily gave up work because of her pregnancy remained a ‘worker’ for the purpose of the right of free movement enshrined in article 45 of the Treaty on the Functioning of the European Union and the right of residence conferred by article 7 of the Directive.

The court ruled: The court was not persuaded that the instant case was acte clair. Accordingly, the following questions would be referred to the Court of Justice of the European Union: (i) was the right of residence conferred upon a ‘worker’ in article 7 of the Directive to be interpreted as applying only to those (a) in an existing employment relationship, (b) (at least in some circumstances) seeking work, or (c) covered by the extensions in article 7(3), or was the article to be interpreted as not precluding the recognition of further persons who remained ‘workers’ for that purpose; and (ii)(a) if the latter, did it extend to a woman who reasonably gave up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth); (b) If so, was she entitled to the benefit of the national law’s definition of when it was reasonable for her to do so (see [21], [22] of the judgment).

Questions would be referred to the Court of Justice of the European Union for its determination (See [21] of the judgment). Per curiam: It was likely that the Council and Parliament, when enacting the Directive, did think that it was codifying the law as it then stood. In so doing, it was not precluding further elaboration of the concept of ‘worker’ to fit situations as yet not envisaged. Pregnancy and the immediate aftermath of childbirth are a special case. Equal treatment of men and women is one of the foundational principles of European Union law. Only women could become pregnant and bear children. In that respect they could not be compared to men.

Pregnancy is not to be equated with illness or disability. But unless special account was taken of pregnancy and childbirth, women would suffer comparative disadvantage in the workplace. There are also good reasons in health and social policy for allowing women to take a reasonable period of maternity leave without losing the advantages attached to their status as workers. That is different from leaving the workforce in order to look after children. Both men and women might do that and there is no sex discrimination involved in denying them both the status of worker for the time being. The sex discrimination argument cannot be seen as invalidating article 7 of the Directive but as indicating that it would be consistent with the fundamental general principles of European Union law for the court to develop the concept of ‘worker’ to meet that particular situation (see [21] of the judgment).

Richard Drabble QC (instructed by Child Poverty Action Group) for the claimant; Jason Coppel and Denis Edwards (instructed by DWP/DH Legal Services) for the secretary of state; Jemima Stratford QC and Charles Banner (instructed by Freshfields Bruckhaus Deringer LLP) for the intervening party.