## Facts

- Mary Brown was employed by Rentokil Ltd in the United Kingdom as a driver performing heavy work.
- After informing Rentokil she was pregnant, Brown stopped working in mid-August 1990 and submitted consecutive medical certificates for pregnancy-related disorders; she did not return to work before dismissal.
- Brown’s contract allowed dismissal where an employee took more than 26 weeks of continuous sick leave; Rentokil applied this rule to Brown’s continuing absence.
- Rentokil warned Brown that if she did not return by 8 February 1991, her employment would be terminated; she did not return and was dismissed effective that date while still pregnant.
- Brown’s child was born on 22 March 1991.
- Under national law, Brown did not qualify for statutory maternity leave protection because she lacked the required continuous service.
- Brown alleged unlawful sex discrimination; national tribunals and appellate courts rejected her claim by distinguishing dismissal “because of pregnancy” from dismissal “because of illness attributable to pregnancy.”
- On appeal, the House of Lords referred questions to the Court of Justice for a preliminary ruling on the meaning of direct sex discrimination under Directive 76/207/EEC.

## Issues

1. Whether Directive 76/207/EEC bars dismissal of a pregnant worker during pregnancy for absence caused by pregnancy-related illness, including where dismissal is triggered by a facially neutral contractual sick-leave threshold.
2. Whether the worker’s lack of eligibility for statutory maternity leave under national qualifying-service rules affects the EU-law analysis.
3. How pregnancy-related absences that start during pregnancy and extend into and beyond maternity leave may be counted in calculating an absence period that would justify dismissal under national law.

## Decision

- The Court held that Directive 76/207/EEC precludes dismissal of a female worker at any time during pregnancy for absences due to incapacity for work caused by illness resulting from pregnancy.
- The Court held it is irrelevant that dismissal occurred under a contractual term applying to employees of either sex after a set period of continuous absence.
- The Court characterized such dismissal as essentially based on pregnancy and therefore direct sex discrimination, because only women can be affected.
- For calculation of an absence threshold justifying dismissal, the Court ruled that absences from the beginning of pregnancy up to the end of maternity leave cannot be taken into account.
- The Court ruled that after maternity leave, pathological conditions caused by pregnancy or childbirth fall under ordinary sickness rules, and post-maternity-leave absence may be counted under the same conditions applicable to a man.

## Legal Principles

- Dismissing a worker during pregnancy for pregnancy-related incapacity for work constitutes direct discrimination on grounds of sex under Directive 76/207/EEC.
- A formally gender-neutral dismissal rule based on length of sickness absence cannot justify dismissal when the relevant absence is pregnancy-related during pregnancy.
- In applying absence-based dismissal thresholds, time absent due to pregnancy-related illness during pregnancy and during maternity leave must be excluded from the calculation.
- After maternity leave ends, continuing illness (including illness originating in pregnancy or childbirth) is treated under general sickness rules, subject to equal treatment with male workers.

## Conclusion

The Court of Justice interpreted Directive 76/207/EEC to prohibit dismissing a pregnant worker for pregnancy-related sickness absence during pregnancy, regardless of neutral sick-leave thresholds or national eligibility limits for maternity leave, while allowing post-maternity-leave sickness absence to be assessed under ordinary, sex-neutral illness rules.


Brown v. Rentokil Ltd., Case C-394/96 (C.J.E.U. 1998)