Statutory Maternity Pay – Allowances where entitlement depends on the employee workingWednesday, September 16th, 2009
On 3 September 2009, Advocate General Poiares Maduro delivered his Opinion in the case Susanne Gassmayr v Bundesministerin für Wissenschaft und Forschung. The Opinion of an Advocate General is usually a preliminary step in the procedures leading to the judgements of the European Court of Justice (ECJ).
The Higher Administrative Court of Austria had referred a number of questions to the ECJ in relation to this case. In 2002 and 2003, Dr. Gassmayr, a junior hospital doctor, took maternity leave. Included in her contractual payments was entitlement to an allowance for being on call outside of her normal working hours. She was never on call during her maternity leave but argued that the average of her on-call allowances prior to her maternity leave should have been included in the calculation of her maternity pay.
The Advocate General proposed answer to the Austrian court’s questions was that the European Directive relevant to maternity protection does not prevent national law deciding that an allowance that is linked to the performance of specific duties that are not performed during maternity leave does not have to be included in the calculation of maternity pay, as long as the maternity pay does not fall below the minimum level guaranteed under national law.
As UK legislation provides for statutory maternity pay (SMP) to be calculated on the basis of average earnings during the relevant eight week period preceding the qualifying week, such an on-call allowance would be included in the rate of SMP if it were paid during that relevant period. But, on the basis on this preliminary Opinion, there would be no requirement for such an allowance to be factored into the calculation if it had not been paid during the relevant period.
Susanne Gassmayr v Bundesministerin für Wissenschaft und Forschung
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