Jessy Saint Prix v Secretary of State for Work and Pensions

It is not clear whether the categories in Article 7(3) of Directive 2004/38/EC exhaust the circumstances in which a Union citizen who has ceased work may retain worker status. The Directive may permit further development of that concept under EU law.

Pregnancy and the immediate aftermath of childbirth require special consideration. They differ both from illness and from leaving employment to care for children. The foundational principle of equal treatment may support treating a woman who reasonably stops work during late pregnancy and shortly after childbirth as retaining worker status. The proper interpretation, and whether national law may define the reasonable period, were referred to the Court of Justice of the European Union.

The appellant, a French national, worked in the United Kingdom before stopping agency work during the later stages of pregnancy. She claimed income support within the period during which domestic law did not require a pregnant woman to be available for or actively seeking work. The Secretary of State refused the claim because she lacked the required right to reside.

The First-tier Tribunal allowed her appeal. The Upper Tribunal reversed that decision, and the Court of Appeal dismissed her further appeal in [2011] EWCA Civ 806.

The issue before the Supreme Court was whether a woman who temporarily ceased work because of late pregnancy and the immediate aftermath of childbirth remained a worker for Article 45 TFEU and Article 7 of Directive 2004/38/EC. If further categories of retained worker status were permissible, the Court also had to consider whether national law could determine the reasonable period of absence.

1. Reference to the Court of Justice made. Lady Hale, giving the unanimous judgment, held that neither party's proposed interpretation of Article 7 of Directive 2004/38/EC was acte clair. The Supreme Court therefore referred the interpretative questions to the Court of Justice of the European Union rather than determining the appellant's substantive entitlement to income support.

2. The Council and Parliament probably intended the Citizenship Directive to codify the existing law. That intention did not clearly establish that Article 7(3) precluded further development of the EU concept of a worker to address circumstances not previously envisaged. The concept of EU citizenship had itself continued to develop, as illustrated by Collins v Secretary of State for Work and Pensions [2004] ECR I-2703.

3. Pregnancy and the immediate aftermath of childbirth constituted a special case. Equal treatment of men and women was a foundational principle of EU law. Pregnancy could not be equated with illness or disability, but women would suffer comparative disadvantage in the workplace unless pregnancy and childbirth received special consideration. Health and social policy also supported allowing a reasonable period away from work without loss of the advantages attached to worker status.

4. Temporary cessation of work because of late pregnancy and childbirth was materially different from leaving the workforce to care for children. Both men and women might undertake childcare, and denying worker status to both while outside the workforce did not itself involve sex discrimination. The pregnancy-related equality argument did not invalidate Article 7. It indicated, however, that development of the concept of worker to cover this situation would be consistent with the general principles of EU law.

5. The Court referred three connected matters: whether Article 7 permits recognition of retained worker status beyond existing employment, job-seeking and Article 7(3); whether any wider category includes a woman who reasonably stops working or seeking work because of late pregnancy and the aftermath of childbirth; and whether the reasonable period may be determined by national law.

1. United Kingdom Supreme Court: Held that the interpretation of Article 7 of Directive 2004/38/EC was not acte clair and referred questions to the Court of Justice of the European Union.
2. Court of Appeal: Dismissed the claimant's appeal in [2011] EWCA Civ 806.
3. Upper Tribunal: Allowed the Secretary of State's appeal on 7 May 2010.
4. First-tier Tribunal: Allowed the claimant's appeal against the refusal of income support on 4 September 2008.