Protection for Pregnant Workers
In 1990 the CJEU delivered a landmark judgment in the case of Dekker vs. Stichting Vormingscentrum voor Jong Volwassenen, which found that pregnancy discrimination was an unlawful direct discrimination on the grounds of gender.1 However, on the same day this judgment was delivered, the court in another case limited its impact. In Hertz vs. Aldi it found that protection from such discrimination was limited in time to the length of the national maternity leave.2 In recent decades it has been a foremost objective of the EU to ensure the health and safety at work of pregnant workers and those who have recently given birth and to ensure that women are not discriminated against in the employment sector on the grounds of pregnancy- and maternity-related issues.
This is one area where there is clear disparity between the treatment of men and women, but such is justified on objective grounds. The EU has focused primarily on ensuring that pregnancy and childbirth do not give rise to discrimination, ensuring that mothers are given a minimum period of maternity leave and assuring rights during that leave period. It aims to ensure substantive protection by reducing inequalities and to “prevent or compensate for disadvantages in the professional career of the relevant person.”3 Achieving this substantive equality often involves a difference in treatment with the pregnant woman receiving more favorable treatment than a male counterpart. For example, a woman cannot be disciplined for taking time off work due to a maternity-related sickness or illness whereas a man may be disciplined for absence due to illness.4 However, this is not necessarily gender discrimination as women who are not pregnant can also be disciplined for absences due to illness.
The Pregnant Workers Directive (Directive 1992/85) aims to protect the health and safety of pregnant workers or those who have recently given birth or are breastfeeding. It was adopted pursuant to the Health and Safety Framework rather than the Scheme of Employment Equality Law, and as a result there is a compromise between the interests of business and the right to equality.5 The directive also makes provision for:
• Health and safety risks at work
• Maternity leave of a minimum of 14 weeks. Member states are free to increase this and Denmark has the highest level of maternity leave at 52 weeks paid by the government, although not always at full salary level.
• Prohibition of dismissal during the period of pregnancy or maternity leave as it is recognized that such dismissal could have detrimental effects on the health and well-being of the woman
• The rights linked to the employment contract, including some payment while on maternity leave
As the directive refers to the pregnant “worker,” we must again consider what the term means in the context of this directive. In Danosa vs. LKB the CJEU stated that the concept of a worker must be defined objectively—essentially, the worker is someone who performs services for and under the direction of another person and for which he or she receives remuneration.6 Again, classifying the relationship as one of self-employment under national law will not necessarily invalidate the provisions of the directive. In this case the court found that even if the woman concerned did not constitute a worker as per the directive, her removal based on pregnancy would constitute direct discrimination on the grounds of gender (as only women can become pregnant) and therefore fall foul of EU law. This is the case even where the pregnant woman has not formally informed her employers of the pregnancy—as long as they have knowledge of the pregnancy, she is protected under the directive.
Most issues relating to pregnancy and maternity matters are now brought under the Recast Directive 2006/54 and not the Pregnant Workers Directive. The Recast Directive confirms that any unfavorable treatment of a woman on the grounds of pregnancy or maternity constitutes direct discrimination. The bounds of the directive were explained as follows: “A female worker is protected in her employment relationship against any unfavourable treatment on that ground that she is or has been on maternity leave…. A woman who is treated unfavourably because of an absence on maternity leave suffers discrimination on the ground of her pregnancy.”7 The directive seeks to ensure that pregnant women are not obliged to work night shifts and for a period following childbirth. A pregnant or nursing worker has the right to have her working conditions adapted and where this is not possible, the right to additional leave.
Further, the directive permits member states to introduce specific measures aimed at guaranteeing women particular rights during pregnancy and maternity. This is intended to ensure the implementation of equal treatment for men and women in relation to access to employment and working conditions. Therefore, women cannot be subjected to unfavorable treatment during the exercise of their maternity rights. However, there are two exceptions to this rule, both of which relate to pay. The first exception is that pregnant women on sick leave due to a pregnancy-related illness are not entitled to special pay. They are entitled only to the same amount of contractual sick pay as any other employee and not entitled to full pay where other employees would not receive the same.8 Further, where a pregnant woman is transferred to alternative duties there is no requirement to continue to pay supplements that are dependent on performing specific functions.9 Second, women are not entitled to full pay during maternity leave.10 The maternity leave benefit is paid by the state and the amount paid varies throughout the member states. For example, in the UK (which offers 52 weeks’ maternity leave) maternity benefit is paid at 90 percent of weekly salary for the first six weeks with no upper limit, then a maximum of £140 per week for the remainder of the leave. In Ireland (with 26 weeks’ maternity leave) maternity benefit is either €235 per week or the maximum payable under illness benefit, whichever is higher. France has maternity leave of 16 weeks and the maternity benefit is calculated on the basis of the average daily not to exceed €3,269. Many companies choose to pay additional maternity benefit, topping up the state payment to ensure that at least most of the salary is received during leave.
Maternity leave is intended, according to the CJEU in Thibault and Gassmeyer, to protect the woman’s biological condition during pregnancy and after childbirth and to protect the relationship between a mother and her child in the period following birth.11 While this is restricted to mothers, there is provision in EU law for paternity leave. In addition, the court has found that a woman should not be disadvantaged, irrespective of the cost or inconvenience to the employer. This includes protection from risks to health, protection from discrimination in relation to recruitment and promotion, access to benefits during maternity leave, protection from dismissal on the grounds of pregnancy, and the maintenance of employment rights. In Greismar the CJEU affirmed that the situation of a pregnant worker is not comparable to that of a male worker where the advantages are designed to offset any inherent occupational disadvantages she may suffer due to being away from work on maternity leave.12 Thus, a man cannot complain about discrimination in pay or conditions as his situation is not and cannot be comparable. In Abdoulaye and Ors it was argued that paying allowances to women during maternity leave was discriminatory as the birth of a child has implications on the whole family.13 The CJEU held that the situation of women on maternity leave was different from that of men and therefore the principle of equal pay did not arise. While it was acknowledged that there was an impact on all members of the family, pregnancy, childbirth, and breastfeeding were physically exclusive to women and therefore there could be no comparison.
It is a breach of the directive to refuse to hire an employee due to her pregnancy. In Dekker the company violated EU law for failing to appoint a suitably qualified woman due to the possible adverse effects of her pregnancy; it was irrelevant that the company would suffer adverse consequences from her appointment.14 As noted earlier, dismissal on the grounds of pregnancy is also prohibited. This protection runs from the beginning of pregnancy to the end of maternity leave. It includes decisions that were made and the preparatory steps taken during maternity leave where the dismissal itself did not occur until after the leave had expired.15 The cases before the CJEU on dismissal on the ground of pregnancy have been vast, but broadly the court has established a number of key principles:
• The protection applies to contracts of indefinite duration and to fixed-term contracts. In Melgar it was determined that the decision not to renew a fixed-term contract on the grounds of pregnancy amounted to direct discrimination.16
• A woman is not obliged to tell her employer of her pregnancy. It was confirmed in Busch that her reasons for this are irrelevant.17
• Protection applies to women undergoing IVF treatment.18 However, a more restrictive approach was taken by the court in relation to a surrogacy arrangement. In Z vs. A Government Department the failure to pay the commissioning mother for time off to care for the baby on the same basis as maternity leave was not discriminatory.19
• A pregnant worker cannot be dismissed for sickness due to pregnancy even where another employee could be dismissed for the same absences due to illness.
The Recast Directive now includes pay as a form of unfavorable treatment; where a woman is paid less when at work because of her pregnancy, this will be discrimination without the need to show that a man doing equal work was paid more.
A woman on maternity leave is entitled to return to the same job and in the same position with terms no less favorable. If she is not allowed to return to her job or if adverse conditions have been added in her absence, this will be discriminatory.
In addition, a woman cannot be deprived of an appraisal and consequently denied the right to apply for a promotion by virtue of being on maternity leave.20
Parental leave is a concept that allows parents to take unpaid leave to care for young children. The Parental Leave Directive21 had a difficult start. It was first proposed in 1983 but was abandoned due to the need for unanimity. Eventually adopted in 1996, it gave the state two years to incorporate provisions. This directive was repealed in 2012 and replaced by the 2010 Directive.22 The purpose of the new directive is to “facilitate the reconciliation of professional and parental responsibilities for working parents…taking account the increasing diversity of family structures while respecting national law, collective agreements and/or practice.”23 The right to parental leave is for four months for each child and this leave is unpaid. The entitlement is given to parents of a child or adopted child up to eight years of age. The right is an individual one and cannot be transferred from one parent to the other. Employees returning from parental leave have the right to request changes in their working hours or patterns for a certain period. The directive also stipulates that the employee must return to the same or an equivalent position.
There has not been a great deal of consideration by the CJEU of the Parental Leave Directive. In Commission vs. Luxembourg it was found that the period of parental leave cannot be reduced where it is interrupted by another form of leave (maternity leave, for example).24
While there are some similarities between the EU and the United States in terms of antidiscrimination provisions in relation to pregnancy; the glaring difference comes with maternity leave. In the United States, the Pregnancy Discrimination Act forbids discrimination on the grounds of pregnancy in relation to any aspect of employment. In terms of inability to perform a task due to pregnancy or childbirth or related issues the employer is to regard the employee as they would any disabled employee. The employer may have to provide light or alternative duties or other reasonable accommodation as per the Americans with Disabilities Act 2008. If a pregnant woman cannot work at all due to pregnancy-related illness, she may be entitled to unpaid leave under the Family and Medical Leave Act. Employers cannot terminate employment on grounds of pregnancy nor can they discriminate in the hiring or promotion process.
Maternity leave in the EU, however, is very different from that in the United States. It is governed by the Family and Medical Leave Act 1993 and provides that new mothers can take 12 weeks of unpaid maternity leave. This is less than the minimum duration of leave mandated by the EU and is entirely unsupported by state payments. Further, this entitlement to unpaid maternity leave is not open to all. In order to qualify the pregnant woman must work in a firm of more than 50 employees, must have been in employment for a period of at least 12 months, and must have worked a minimum of 1,250 hours during those preceding 12 months.
President Trump has stated that he plans to bring in paid maternity and paternity leave; however, at the time of writing no such plans have been implemented. In the event that this does happen, his proposal is limited to three weeks’ paid maternity leave, leaving the United States in the last place among OECD countries.
1 Case 177/88 Dekker [1990] ECR I-3941. See E. Ellis. 1991. “Discrimination on the Grounds of Pregnancy in EEC Law” Public Law, p. 159.
2 Case 79/88 Hertz [1990] ECR I-3979.
3 Alvarez vs. Sesa Start Espana ETT SA C/104/09.
4 Case 394/96 Brown vs. Rentokil Ltd [1998] ECR I-4185.
5 Mancini, G.F., and S. O’Leary. 1999. “The New Frontiers of Sex Equality Law in the European Union” European Law Review 24, no. 4, pp. 331–53.
6 Case 232/09 Danosa [2010] ECR I-11405.
7 Case 284/02 Land Brandenburg vs. Sass [2005] IRLR 147.
8 Case 66/96 McKenna vs. North Western Health Board [1998] ECR I-7372
9 Case 147/08 Parviainen [2010] ECR I-6533.
10 Case 342/93 Gillespie vs. Northern Health and Social Services Board [1996] ECR I-475.
11 Case 195/08 Thibault and Gassmeyer Judgment 11 July 2008.
12 Case 66/99 Greismar [2001] ECR I-9383.
13 Case 194/08 Abdoulaye [1999] ECR I-5723.
14 Case 177/88 Dekker [1990] ECR I-3941.
15 Case 460/07 Paquay [2007] ECR I-8511.
16 Case 36/99 Melgar [2000] ECR I-6049.
17 Case 320/01 Busch Judgment 27 February 2003.
18 Case 506/06 Mayr [2008] IRLR 386.
19 Case 363/12 Z Judgment 12 May 2004.
20 Case 195/08 Thibault and Gassmeyer Judgment 11 July 2008.
21 96/42/EC.
22 2010/18 EU.
23 Clause 1.1.
24 Case 519/03 Commission vs. Luxembourg [2005] ECR I-3067.