On appeal from: [2011] EWCA Civ 806.

Considers whether the appellant, a French national, retained her right to reside in the UK as a “worker” pursuant to the Citizenship Directive (2004/38/EC), art 7 during the period when she temporarily ceased to be employed by reason of the late stages of her pregnancy and early aftermath of childbirth. Her application for income support had been refused on the basis that she no longer held the status of worker, and was therefore a “person from abroad” who did not qualify for the benefit. The appellant argued it would be a substantial deterrent to the free movement of female workers, and amount to direct discrimination on grounds of sex, if they lost the right to reside around the time of giving birth.

Held: the Supreme Court unanimously decides to refer two questions to the CJEU. Pregnancy and the immediate aftermath of childbirth (as opposed to leaving the workplace to look after children) were a special case, affecting only women, who would suffer comparative disadvantage in the workplace unless special account was taken.

Equal treatment of men and women is one of the fundamental general principles of EU law and may lead to the development of the concept of “worker” by the CJEU to meet this particular situation.

For judgment, please download: [2012] UKSC 49
For Court’s press summary, please download: Court’s Press Summary
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