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This is an appeal concerning the status under EU law of a French citizen who worked as an agency worker in the UK before temporarily giving up employment due to the demands of pregnancy but intended to (and did) return to work promptly after giving birth. The Appellant was refused Income Support during her period of non-employment on the basis that she no longer remained, or retained the status of, a “worker” under Article 7(1)(a) of the Citizenship Directive because she had ceased to be in an employment relationship, was not looking for work, and did not fall in any of the categories in which Article 7(3) of the Citizenship Directive provided that a person who is not a “worker” may retain the status of a “worker” for the purposes of EU free movement law. Her appeal was allowed by the First-tier Tribunal, but its decision was overturned by the Upper Tribunal. The Court of Appeal dismissed her appeal. Lady Hale, delivering the judgment of the Supreme Court, held: “22. The Supreme Court is not persuaded that the case of either side is acte clair. We believe it likely that the Council and Parliament did think, when enacting the Citizenship Directive, that the Directive was codifying the law as it then stood. But we are not persuaded that in doing so it was precluding further elaboration of the concept of ‘worker’ to fit situations as yet not envisaged. The Court has developed the concept of EU citizenship in a number of ways: see, for example, Collins v Secretary of State for Work and Pensions [2004] ECR I-2703. We are further conscious that pregnancy and the immediate aftermath of childbirth are a special case. Equal treatment of men and women is one of the foundational principles of EU law. Only women can become pregnant and bear children. Thus in this respect they cannot be compared to men. Pregnancy is not to be equated with illness or disability. But unless special account is taken of pregnancy and childbirth, women will suffer comparative disadvantage in the workplace. There are also good reasons in health and social policy for allowing women to take a reasonable period of maternity leave without losing the advantages attached to their status as workers. This is different from leaving the workforce in order to look after children. Both men and women may do this and there is no sex discrimination involved in denying them both the status of worker for the time being. We do not see the sex discrimination argument as invalidating Article 7, but as indicating that it would be consistent with the fundamental general principles of EU law for the Court to develop the concept of ‘worker’ to meet this particular situation. 23. Hence we refer the following questions to the CJEU: 1. Is the right of residence conferred upon a ‘worker’ in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain ‘workers’ for this purpose? 2. (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national law’s definition of when it is reasonable for her to do so?” The hearing of the reference in the CJEU is likely to take place around late 2013. Richard Drabble QC is acting for the Appellant, instructed by the Child Poverty Action Group. Charles Banner is acting for the AIRE Centre with Jemima Stratford QC, instructed by Freshfields Bruckhaus Deringer LLP.
