Court to find health board contravened equality law

A EUROPEAN court is expected to rule this week that the North Western Health Board (NWHB) breached EU legislation by reducing a female employee’s pay because she was absent from work with a pregnancy-related illness.

The decision by the European Court of Justice on Thursday is expected to end a five-year battle by Margaret McKenna to prove that she was sexually discriminated against by the NWHB due to the way it applied its sick leave scheme.

A preliminary ruling issued by the Luxembourg-based court last year indicated that it will find the health board acted in contravention of Irish and EU equality laws.

The case was referred to the European Court of Justice in 2003 by the Labour Court after the health board appealed a ruling in favour of Ms McKenna by the Equality Tribunal.

Ms McKenna, an assistant staff officer of the NWHB, took leave from her job in January 2000 on the advice of her doctor after suffering an illness linked to her pregnancy.

Under the terms of the NWHB’s sick leave scheme, staff are entitled to be paid sick leave for up to 365 days over four years. It also stipulates that full pay is given for a maximum of 183 sick days in any 12-month period with any remaining sick days at half pay.

As a result, Ms McKenna was regarded as having used up her entitlement to full pay on July 6, 2000 and was given half-pay from then until September 3, 2000 when she started her maternity leave which lasted until December 2000.

Ms McKenna was paid her full salary during maternity leave but she remained on sick leave in January 2001 and was again awarded only half pay.

She brought a case against the NWHB to the Equality Tribunal in which she claimed that she suffered sexual discrimination as a result of the board’s decision to grant her only half her salary on these occasions.

In 2001, an investigating officer with the Equality Tribunal ruled in favour of Ms McKenna.

It found that the health board was wrong to regard Ms McKenna’s pregnancy-related illness as a normal type of sickness when applying the provisions of its sick leave scheme.

The Equality Tribunal ordered the health board to pay salary arrears and 3,800 in damages to Ms McKenna. It also instructed the NWHB to amend the provisions of its sick leave scheme so that it no longer discriminated against women in relation to pregnancy-related illness.

In the case before the European Court of Justice, the health board maintained that its sick leave scheme did not discriminate against Ms McKenna as it treated all illnesses in the same manner.

The Government supported the stance taken by the NWHB by claiming that the position taken by Ms McKenna would have very damaging financial repercussions for the State.