Steve Peers
The
vast bulk of EU legislation and case law on sex discrimination aims to facilitate
women’s access to employment, and their equal treatment within the workplace. Yesterday’s
CJEU ruling in Maistrellis approaches
these issues from an unusual angle: the access of a father to parental leave, in a case where the mother of his children
was not working or seeking paid work at all. The judgment raises interesting questions about the role that EU employment and discriminaton law plays in family life.
Background
EU
rules on parental leave date from an agreement of social partners in
1996, which was updated in 2010. This case concerns the 1996 version of
the agreement, which begins by stating the social partners’ intention: ‘reconciling
work and family life and promoting equal opportunities and equal treatment
between men and women’. The preamble refers to the work/life balance point
(paragraph 4) and the promotion of ‘women’s participation in the labour force’
(paragraph 7). It also states that ‘men should be encouraged to assume an equal
share of family responsibilities’.
The
main text of the agreement makes clear that it sets out only ‘minimum
requirements’. It applies to ‘all workers, men and women’, who have an
employment contract or relationship as defined by national law. It gives ‘men
and women workers an individual right to parental leave’ on the birth or
adoption of a child, for at least three months, up to an age (up to 8) to be
defined by Member States or social partners. ‘To promote equal opportunities’,
the right should be non-transferable.
Detailed
rules on parental leave must be defined by national legislation and/or collective
agreements, as long as those rules meet the minimum requirements in the
Directive. These rules can: decide if parental leave is granted on a full-time
or part-time basis; set out a waiting period of up to one year of employment; adjust
the rules to the particular circumstances of adoption; establish notice periods
to be given to the employer; define when the employer can postpone parental
leave; and ‘authorise special arrangements’ for small businesses.
Furthermore,
the agreement specifies that workers who apply for or take parental leave are
protected from dismissal on those grounds. They have the right to return to the
same job (or a similar job, if that’s not possible) at the end of the parental
leave. Parents also retain any rights which they acquired before the parental
leave began, although it’s up to national law or employers to determine whether
parents are paid during their leave period. All social security issues are left
to national law. Finally, workers are also entitled to time off from work for ‘urgent
family reasons’, although the details and limits on this right are left to national
law and social partners to determine.
Judgment
The
father in this case was a Greek judge, who sought to exercise parental leave for
a paid period of nine months. In practice Greek law curtailed this benefit in
two ways: first of all by limiting it to mothers only; and secondly (in a rather
contradictory manner) by attaching strict conditions as regards fathers, which
didn’t apply to mothers. If a mother stays at home to look after the child (as
in this case), a father could only obtain the leave if the mother was unable to
look after the child due to illness or injury. The Greek courts had already
ruled that the first limit was inapplicable, and now asked the CJEU if the second
limit breached EU law.
According
to the CJEU it did, for two reasons. First of all, it breached the parental
leave agreement, because that agreement states that parental leave is an ‘individual
right’ which is ‘non-transferable’. Therefore (reiterating prior case law) it
applied to each parent. The possible
limits referred to in the Directive make no provision for denying parental
leave based on the employment status of the spouse. This literal interpretation
was reinforced by the overall context of the agreement: obtaining a better
work/life balance, and encouraging men to take on more family responsibilities.
The right to parental leave also appears in the EU Charter of Fundamental
Rights.
Secondly,
the Greek rule also violated the EU Directive on sex discrimination in
employment. That was because parental leave was a working condition, and the
position of men and women was ‘comparable’ as regards bringing up children. The
Greek law attached a condition to fathers that it did not attach to mothers, so
constituted sex discrimination.
Furthermore,
this distinction ‘is liable to perpetuate a traditional distribution of the
roles of men and women by keeping men’ in a ‘subsidiary’ role as regards
parenting. While the Directive does provide that it is ‘without prejudice’ to
the parental leave agreement and the pregnant workers’ Directive, the ‘deprivation’
of a father’s parental leave ‘in no way’ helps the health and safety of
pregnant workers or new mothers, which is the purpose of the latter Directive.
Comments
First
of all, it should be noted that Greek law, for at least some workers, far
surpasses the minimum rules in the agreement – nine months’ paid leave, rather
than three months’ unpaid leave. Very few parents in the EU will have access to
this generous a parental leave – even the two weeks of paid leave which I
enjoyed for each child is better than many fathers get. Indeed, the EU’s
pregnant workers’ Directive only requires new mothers to get 20 weeks’ maternity
leave on sickness pay (not full pay) as a minimum (note that parental leave
applies in addition to maternity leave). It’s doubtful that the EU economy as a
whole could withstand such generosity, and indeed I wonder if the Greek benefit
has since become rather less generous due to the demands of the Troika.
So
it’s important to emphasise that the CJEU is not requiring all employers to give fathers nine months’ fully paid
leave for each child. Rather, whatever the period of parental leave (which need
not even be paid), it cannot be subject (for fathers) to conditions relating to
the mother’s employment status.
The
judgment has several interesting implications. First of all, while the CJEU has
traditionally ruled that EU sex discrimination law cannot apply to same-sex
couples (see the Grant
judgment), it’s arguable that the parental leave agreement can. While that agreement
does refer to ‘men’ and ‘women’, the Court’s emphasis on parental leave as an individual right, and the EU Charter ban
on discrimination on grounds of sexual orientation, points in favour of it
applying to same-sex parents. Although it would be possible to use the EU’s
framework equality Directive to challenge a limitation on parental leave
based on sexual orientation, it’s possible that parental leave is being limited
on a basis other than sexual orientation. In any event, a gay or lesbian parent
may prefer to invoke rights as a parent.
Having said that, it should be noted that the civil status of same-sex couples
(ie access to marriage), is, as EU law currently stands, a matter for Member
States to decide (for more on this, see Alina Tryfonidou’s recent blog post).
This must equally apply to adoption.
Secondly,
the ruling is similarly relevant to any family that does not take the form of two
married parents. It must follow from the Court’s ruling that it’s irrelevant
whether the parents are unmarried, or whether the parental leave right is being
claimed by a single parent. Again, it should be pointed out that EU law doesn’t
determine who has custody of a child – at most, it determines which court has
jurisdiction to rule on this issue where there is a cross-border element.
Thirdly, while the ruling
implicitly extends the parental leave agreement to such non-traditional
families, it explicitly confirms its application to the most traditional form of all: families with a stay-at-home mother. As
noted above, EU sex discrimination law has its own tradition, constantly aiming
to encourage mothers to work. Yet in this case, the Court skipped over the many
references to this objective in the relevant EU laws, and asserted instead the father’s
individual right to parental leave as well as his right to non-discrimination on
grounds of sex.
Reading the case more carefully
though, the judgment does challenge the traditional family model in a different
way: not by encouraging mothers to return to work (although of course this is
still relevant in most other cases), but by encouraging fathers to help them at
home. Thirty years ago, the Court was concerned (in its Hofmann judgment) that EU law should not 'alter the division of responsibility between parents', as regards gender roles in the household. Now it’s concerned to make sure that those roles
are shaken up.
It’s surely true to say that equality
between men and women can’t be achieved without challenging those roles. Yet it’s
interesting that in this judgment, the Court wants those roles to be challenged
even if there’s no link with the mother’s employment. In this vein, the Court’s
assertion that equal treatment as regards parental leave will not undermine the
health and safety of new mothers is the understatement of the year: what new
mother wouldn’t welcome the assistance
of the baby’s father for even a short period, never mind nine months? But this
approach subtly alters the purpose of the pregnant workers’ Directive, which is
about employed mothers, not those who
stay at home. Of course, the Court’s interpretation is entirely justified on
social grounds: new mothers can use the help of fathers whether the mothers are
employed or not.
Finally, the Court’s ruling
implicitly emphasises the value of strengthening both parents’ ties with their
children, regardless of any link with the mother’s employment. It’s a good time
to reaffirm this link, as parents across EU (including the Court’s staff) brace
themselves for the start of summer holidays. For parents, this is an
unavoidable and poignant reminder that our babies grow up, our little ones get
bigger, and the time we spend with them is always slipping through our fingers.
Barnard & Peers: chapter 20
Photo credit:
activebabiessmartkids.com.au
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