This piece was originally posted on the UKSC blog and is re-posted here with thanks.
On Monday 15 October the Supreme Court heard the case of Saint Prix v Secretary of State for Work and Pensions. The case concerns whether Ms Saint Prix was to be regarded as a “worker” for the purposes of Article 7(1)(a) of Directive 2004/38/EC(on the free movement of EU citizens) on the date of her claim for Income Support, the question having arisen by reason of her temporary withdrawal from work during the later stages of a pregnancy. The case is significant because of the gender equality issues raised by the case, the Court also being asked to determine whether, if the applicant was not properly to be regarded as a “worker” for the purposes of Directive 2004/38/EC, that Directive is incompatible with the EU principle of Equal Treatment.
Ms Saint Prix is a French national who came to the UK in July 2006 and worked in a variety of jobs before enrolling on a Post-Graduate teaching course, which was to run between September 2007 and June 2008. She became pregnant, the child being due in June 2008, and withdrew from her studies in February 2008, undertaking agency work until March 2008 when she stopped looking for work because of her pregnancy, and unsuccessfully applied for Income Support.
The relevant Regulations would have entitled Ms Saint Prix to Income Support if she was entitled to reside in the UK at the date of her application. That question fell to be determined under Article 7 of Directive 2004/38/EC which provides a right of residence (so far as relevant) to “workers” (Article 7.1), also (Article 7.3) to a EU citizen “who is no longer a worker” but who is “temporarily unable to work as the result of an illness or accident”. Counsel for Ms Saint Prix argued that she was a “worker”, albeit one who had ceased temporarily to work because of her pregnancy, Counsel for the Secretary of State argued that she was a former worker who did not fall within Article 7.3 of the Directive, that provision being the exclusive route back into the protection of Article 7 for a worker who had ceased to work.
The decision of the Lower Courts
The Upper Tribunal and Court of Appeal ruled in favour of the Secretary of State, the Court of Appeal regarding itself bound by the decision of the Court of Appeal in SSWP v Dias  EWCA Civ 807 that Article 7.3 codified the previous jurisprudence on the balance to be struck between the interests of migrant workers and those of receiving states. The Dias case had involved a woman who had taken time out of the paid workforce for the purposes of childcare, the Court of Appeal remarking (§21) that “[t]he circumstances of a parent, of either sex, who gives up employment to care for a child but anticipates a return after some as yet unknown time [being] very common” and that such “circumstances … are not analogous to those which are set out in … Article [7.3], but would represent a significant departure from them”.
Stanley Burnton LJ, with whom Black and Ward LJJ agreed, ruled in the Saint Prix case (§13) that Dias was binding on the Court, that it was “is implicit in art 7.3 that a person who ceases to work for reasons other than those set out in its sub-paragraphs ceases to be a worker” and that “[i]t would be inconsistent with the provisions of the Directive to hold that a woman who ceases work because she is pregnant retains the status of a worker, since pregnancy is not an illness, and it is common ground that the disability that results from pregnancy does not result from an accident within the meaning of art 7.3”.
His Lordship went on to reject the argument that the exclusion from Article 7.3 of women who were pregnant and without contracts of employment from the status of “worker” was discriminatory on grounds of sex, remarking at §21 that this was “[m]anifestly … not a case of direct discrimination” because “[n]either art 7 nor the domestic social security legislation exclude the Appellant from the right to income support on the ground of her pregnancy or her gender” and “those who give up work to care for a disabled or ill relative” being similarly excluded. His Lordship took comfort from the fact that the drafters of Directive 2004/38/EC did not regard Article 7 as discriminatory, given their inclusion of recital 31: “This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union…” Further, neither the Advocate General in Dias (which went to the CJEU on issues other than those relevant here) nor the Court of Appeal in that case had been troubled by any questions of gender discrimination. Any claim of indirect discrimination (§27) “would require to be addressed by appropriate evidence. The allegation would have to address the fact that a national of a Member State who gives up work to care for children may be of either gender, as may a person who gives up work to care for an elderly relative”. Further, any such claim “faces the to my mind insuperable obstacle that in Patmalniece the Supreme Court held that the indirect discrimination that results from the right to residence test is justified under domestic and Community law. Moreover, in the absence of a finding that at the relevant date, i.e., when she made her claim for income support, she was unable to work by reason of her pregnancy, it is difficult to see that it arises”.
The decision of the Court of Appeal in the Saint Prix case is reminiscent of a long line of decisions in which various courts, notably the US Supreme Court and the domestic courts, have insisted that disadvantage associated with pregnancy is not gender discrimination (Geduldigv. Aiello, 417 U.S. 484 (1974)), Webb v EMO Air Cargo (UK) Ltd  1 WLR 49). That approach appeared to have been laid to rest by a succession of decisions of the ECJ (as it then was) in cases such as Case C-177/88 Dekker v Stichting Vormingscentrum voor Jonge Volwassen (VJV-Centrum) and Case C-32/93, Webb v EMO. It is to be hoped that the Supreme Court will put the matter right itself, or make a reference to the CJEU. Similarly, it is to be hoped that the Supreme Court will correct the approach taken by the Court of Appeal to indirect discrimination, in particular the suggestion that a finding of such discrimination would have required that the applicant have been unable to work by reason of her pregnancy. This is inconsistent both with the European and the domestic definitions of indirect discrimination.