Pay during maternity leave
Case 11: The facts
Michelle Alabaster went on maternity leave in January 1996. In accordance with the Statutory Maternity Pay (General) Regulations 1986, her statutory maternity pay (SMP) was based on her normal weekly earnings during the eight weeks immediately preceding the 14th week before the expected week of childbirth in her case, the eight weeks prior to 31 October 1995.
Alabaster’s annual salary was increased with effect from 1 December 1995, but this pay rise was not reflected in her SMP, which had been calculated during the relevant period prior to October.
The European Court of Justice (ECJ) held that a woman who receives a pay increase before the start of her maternity leave is entitled to have it taken into account in the calculation of the earnings-related element of her SMP, even where the pay rise was not backdated to the relevant eight-week reference period.
A failure to do so would be to discriminate against her, since she would have received the pay rise if she had not been pregnant.
Alabaster v Woolwich plc and Secretary of State for Social Security  IRLR 486