Gender discrimination at the place of work is unacceptable, a judgment of the Court of Justice of the European Union recently reaffirmed. The automatic exclusion of a female worker from a training course based on the fact that she took compulsory maternity leave was considered by the CJEU to be discriminatory and hence illegal.

A female employee was successful in a competition for appointment as deputy commissioner in the prison service. However, in order to surpass probation and be entitled to improved working conditions, she was obliged to attend a vocational training course to prepare her for a required examination.

On December 5, 2011 she was admitted to a training course scheduled to start on December 28, 2011. The employee gave birth on December 7, 2011 and began her compulsory maternity leave for three months. On January 4, 2012, the prison service informed her that she was excluded from the course but that she would be admitted automatically to a subsequent course to be organised at an uncertain date.

The female employee opened proceedings before the national courts, alleging gender discrimination The national court seized of the case filed a preliminary reference to the Court of Justice of the European Union, requesting guidance as to whether such an approach as taken by the prison service was compatible with EU law on the equal treatment of men and women in employment.

Her colleagues were able to attend the first course in its entirety and to be promoted, before her, to the higher grade of deputy commissioner

The CJEU observed that, in accordance with EU law, the less favourable treatment of a woman due to pregnancy or maternity leave constitutes gender discrimination. Furthermore, EU law safeguards the right of a woman who takes maternity leave to return to her job or an equivalent post on the same terms and conditions on the termination of such leave. Such an employee must also benefit from any enhanced working conditions to which she would have been entitled during her absence.

In this particular case, the court noted that the maternity leave did not affect the employee’s status as probationary deputy commissioner and at the end of her maternity leave, she returned to the job to which she was assigned before her leave. However, the course from which the employee was excluded formed part of her working conditions and was intended to prepare her for an examination which would allow her access to a higher grade.

The court explained that, therefore, the employee’s exclusion from the course because of maternity leave had a negative effect on her working conditions. Her colleagues were able to attend the first course in its entirety and to be promoted, before her, to the higher grade of deputy commissioner while receiving the corresponding pay.

The court concluded that the employee’s exclusion from the course was to be considered as unfavourable treatment of the employee concerned.

The court noted in particular that the employer automatically excluded the employee from the course without taking into consideration any training already received by the employee. Moreover, though the employer ascertained that the employee would be admitted as of right to a future training course, there was no certain date for such a course and the competent authorities were not obliged to organise such a course at specified intervals.

The court observed that, in order to ensure equality, the employer could have provided for the right of a female employee who returns from maternity leave to participate in an equivalent parallel remedial course. In this way, she would be able to take the required examination within the prescribed period and consequently to be promoted, without delay, to a higher grade.

This would mean that the career development of the employee would not be hindered in relation to that of a male colleague who was admitted to the initial training course.

Both men and women are entitled to equal opportunities. This is guaranteed by both EU law and policy. The Court of Justice ensures that what is preached is put into practice and that no obstacle due to gender is placed in the way of female employees seeking to climb the career ladder.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.