Women who leave work for maternity reasons and return to work afterwards are not to be considered “workers” under European Union free movement law, the UK government argued in the case of Saint Prix v UK (Case C‑507/12). As I said at the time, it is astonishing that the UK government took such a position in this day and age.

Happily, the Court of Justice of the European Union disagreed. The facts reported by the Court in St Prix illustrate the absurdity of the UK position in the case:

Ms Saint Prix was employed in the territory of the United Kingdom before giving up work, less than three months before the birth of her child, because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth. She returned to work three months after the birth of her child, without having left the territory of that Member State during the period of interruption of her professional activity.

The Court’s conclusion was that absence from the labour force owing to maternity does not in principle mean that the woman is no longer a “worker”:

…a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.

On “reasonable period” the Court held:

In order to determine whether the period that has elapsed between childbirth and starting work again may be regarded as reasonable, the national court concerned should take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave

Undeterred by defeat or by the social and economic desirability of protecting the position of women in the workforce, the UK government has been attempting to argue that St Prix should be interpreted incredibly narrowly. Two separate chambers of the Upper Tribunal, the Administrative Appeals Chamber in SSWP v SSF and others [2015] UKUT 0502 (AAC) and the Immigration and Asylum Chamber in Weldemichael and another (St Prix C-507/12; effect) [2015] UKUT 540 (IAC) have disagreed.

In both cases the Upper Tribunal has held that women can leave work up to 11 weeks before their due date, they can be a job seeker or worker at the start of the period of absence, can retain the status of worker for 12 months following childbirth and do not need to return to work in order to have retained worker status during that time.

There is a difference between the decisions, though. In the SSF case the tribunal held that worker status could potentially be retained for a period in excess of 12 months, whereas in Weldmichael the tribunal that 12 months was the maximum.

My colleague Adrian Berry was briefed in both cases and you can read his write-up of the SSF case here and download the determination from the CPAG website. The Weldmichael case is available on BAILII and the headnote reads as follows:

An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:

(a) at the beginning of the relevant period she was either a worker or seeking employment;

(b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);

(c) the relevant period did not extend beyond 52 weeks; and,

(d) she returned to work.

So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.

Note that bullet point (d) is simply wrong and does not accurately reflect the content of the determination itself, even if it is lifted directly from paragraph 59 of the determination. The Home Office had argued that a return to work is necessary but this argument was rejected by the tribunal at paragraph 41, Instead the tribunal held that the decision maker must evaluate whether the woman has re-entered the employment market, which is akin to assessing whether she has become a job seeker.

This was also the outcome in SSF: the woman does not need to return to work to have retained the status of worker as long as she returns to the employment market. See paragraphs 38 to 44 of that decision.

Great work by Adrian and great results in both cases.