Osbornes victorious in landmark Upper Tribunal decision concerning maternity rights

For many years the issue of maternity rights for European Economic Area (EEA) national women, who have exercised their freedom of movement as workers within the EU, has been a concern. If an EEA national woman has been fortunate enough to be employed in a job with sufficient security to afford contractual employment rights, it has been possible for them to rely on contractual maternity rights. However, many women do not have such job security. For example those on short term or temporary contracts, agency workers, or those on flexible or zero hours contracts.

The previous situation for EEA national women without contractual maternity rights meant that if a woman was forced to stop work due to the late stages of pregnancy, or the aftermath of childbirth, their only option was to try and claim a UK state benefit to meet the costs of life and keeping a roof over their head during the period of their maternity. However, the rules on access to most state benefits mean that in order to qualify for the benefit in question you must first meet a “right to reside” test. For EEA nationals the rules provide that workers have a right to reside. It is possible in certain circumstances to retain that right to reside for a temporary period of time when an EEA national is forced to stop work. These circumstances include where a person loses their job involuntarily and is looking for another job, or where someone is temporarily incapable of work due to an illness or injury. However, there is no specific provision for a right to reside to be retained for an EEA national woman working in another EU member state where they are forced to give up work due to the aftermath of childbirth.

The practical upshot of the right to reside test in this scenario was that at the time a woman had most need of support from the state for a temporary period of time during which they were unable to work, they were deprived of any assistance by the very fact of their maternity and inability to work. Whilst it was possible for a pregnant British national woman to claim Income Support up to 11 weeks before the expected week of childbirth and for 15 weeks after childbirth, EEA national women in the same situation were denied any support. Similar restrictions apply to the ability to claim Housing Benefit.

It was possible for women in this situation to try and claim jobseekers allowance (“JSA)” instead. However, from 6 weeks before the expected week of childbirth until 2 weeks after giving birth, a woman is deemed to be incapable of work, and thus ineligible to claim JSA during that period.

It was considered by many that this position discriminated against EEA women on the basis of nationality, as well as discriminating generally against women on the basis of sex. A legal challenge was brought to try to change this position and in the UK and this culminated in the Supreme Court referring the case to the Court of Justice of the EU (“CJEU”). This resulted in the decision of Saint Prix v Secretary of State for Work and Pensions C‑507/12. (“Saint Prix”)

The CJEU decided that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, provided she returns to work or finds another job within a reasonable period after the birth of her child.

The CJEU essentially developed existing EU legislation to deal with the situation of women who have had to give up work temporarily due to pregnancy or the aftermath of childbirth. However, in part due to the somewhat unusual facts of the Saint Prix case, the judgement left open numerous questions for the national courts to resolve. These questions have now been addressed by the Upper Tribunal (Administrative Appeals chamber) in the case of SSWP v SFF and Others [2015] UKUT 502 (AAC) (10 September 2015). The decision involves three linked appeals involving claims for income support, housing benefit and council tax benefit by female EU citizens who left the labour force for maternity reasons, but who were not on maternity leave pursuant to a contract with an existing employer.

Set out below are the questions posed by Judge Ward in that case and the answers set out in his judgement:

1. What is the nature of the Saint Prix right? Is it to be assessed prospectively or retrospectively?

A Saint Prix right may be established prospectively as well as retrospectively. This means that a woman applying for a social welfare benefit does not need to prove at the outset that she will, or has, returned to work. It is sufficient that she demonstrate an intention that she will return to the work or work seeking. However, the right to reside acquired pursuant to the Saint Prix decision can be terminated later if a reasonable period of time has passed without the woman returning to work or work seeking.

2. To whom are Saint Prix rights available?

It is available to women who have exercised freedom of movement for workers and are employed in a member state other than the member state from which they originate. The Upper Tribunal confirmed that it is possible to enter the period of a Saint Prix right to reside if a woman was employed immediately beforehand or if they retained worker status under Art 7(3) of Directive 2004/38.

3. When does the Saint Prix right start?

The St Prix right to reside will usually start 11 weeks prior to the expected date of birth. This uses the period for when income support is available for pregnant women as a yardstick. However, this starting point may be displaced on the facts of a particular case.

4. How long does the reasonable period last?

The reasonable period to retain the Saint Prix right will normally be 52 weeks. The government had 26 weeks. However, the Court was persuaded that the reasonable period should usually be 52 weeks on the basis that the CJEU in Saint Prix had decided that the reasonable period would be based on national rules for maternity leave and in the UK the national rules provide for 52 weeks. This in effect overturns previous DWP guidance. On the specific facts of a case it may be possible to displace the 52 week period and in such cases it may be appropriate for the reasonable period to be longer. These are likely to be unusual cases.

5. Does a woman have to return to work (or find another job) or will a return to job seeking suffice?

If, before the entry into the Saint Prix period, a pregnant woman has retained worker status (as a former worker who is jobseeking) it is possible for her to exit the Saint Prix maternity period and enjoy the Saint Prix right to reside, for the period that it was required, by becoming a jobseeker who retains worker status again. It is not necessary for her to return to an actual job or find another job in order to be able to rely upon the Saint Prix right to reside. The same applies to a pregnant woman who was a worker (as opposed to someone with retained worker status) at the point she entered the Saint Prix period. It is possible for such a woman to rely upon the Saint Prix right to reside by exiting the reasonable period of maternity by becoming a jobseeker, as opposed to having to return to a previous job or secure a new job.

6. Can a Saint Prix right count towards permanent residence?

Yes. The St Prix period counts towards the accumulation of lawful residence necessary to acquire an EU right of permanent residence.

This decision represents a major victory for female workers (at least pending any successful appeal by the government).

Associate solicitor, William Ford, represented one of the Appellant’s in the case.

William is a specialist Housing and Social Care Lawyer at Osbornes. He is recommended in the independent legal directory The Legal 500. The department is also ranked as a leading practice in the UK.

To speak with William on the above issues or any other housing or social care issue you have call us on 020 7485 8811. You can also contact us using our online enquiry form.