The Supreme Court has referred questions to the Court of Justice of the European Union on the meaning of ‘worker’ in EU law and whether a pregnant woman who leaves work on account of her pregnancy can retain “worker” status for the purposes of Directive 2004/38/EC (“the Residence Directive”).   This case will present the ECJ with one of its first opportunities to clarify when worker status can be retained, following the entry into force of the Residence Directive, in circumstances where the Directive does not expressly provide for the retention of worker status.

In order to have worker status under EU law, a person must actually be in an employment relationship (for example, on maternity leave) or fall within one of the specified situations in Article 7(3) of the Residence Directive where worker status is retained (such as being unavailable for work because of illness or involuntary unemployment).

This case was brought in England by the Child Poverty Action Group as a test case.  The Appellant had been an agency worker engaged by nursery schools.  Around the time when she was six months pregnant, she decided that she was no longer able to work because of her pregnancy.  She left her employment and claimed income support. The Department for Work and Pensions refused her claim for income support on the ground that she did not have a right to reside in the UK for the purposes of entitlement to benefit.  In particular, at the time of her claim she was not a worker or a person who retained “worker status” in EU law under Article 7(3) of the Residence Directive.

The Appellant successfully appealed the refusal of benefit to the First-tier Tribunal.  The Secretary of State then appealed the Tribunal’s decision to the Upper Tribunal.  In May 2010, Judge Ward allowed the Secretary of State’s appeal, concluding that a woman who left her employment on account of pregnancy did not retain worker status in EU law and so was not entitled to Income Support.

The Appellant appealed to the Court of Appeal.  For this purpose, she had the benefit of a protective costs order.  The Court of Appeal upheld the Upper Tribunal’s decision, following which the Supreme Court granted the Appellant permission to appeal.

On 31st October 2012 the Supreme Court concluded that neither the Appellant’s nor the Secretary of State’s cases were acte clair, so that a reference under article 267 of the Treaty on the Functioning of the EU was required in order to decide the case.  The ECJ will now have to resolve one of the most difficult issues in the law on free movement of persons, namely, whether the Residence Directive is to be treated as a consolidating measure or only one stage in the judicial development of the rights of EU citizens.

Denis Edwards of Terra Firma acted for the Secretary of State in the Upper Tribunal and as junior counsel in the Court of Appeal and the Supreme Court.