It is permissible for collective agreements to cater for additional leave for mothers only, without being in breach of the legal obligation to ensure equality at the place of work, the Court of Justice of the European Union (CJEU) has recently affirmed. This is so provided that certain specific conditions are satisfied.
EU law prohibits both direct and indirect discrimination based on gender in so far as recruitment, access to employment or self-employment, dismissal, vocational training and membership of a workers’ or employers’ organisation, is concerned. The same applies in so far as pay for the same work or work of equal value, and access to and application of occupational social security schemes, are concerned. Different treatment for men and women may only be justified by reason of the nature of the particular occupational activity, if the measures taken are legitimate and proportionate.
The dispute in this case arose from the refusal by an employer to grant the father of a child, who is bringing up the child on his own, the same leave which is granted to female workers who bring up their children on their own. The national industrial tribunal before which proceedings were brought, referred to a judgment of the French courts which maintained that the leave at issue is a supplementary maternity leave offered at the expiry of the statutory maternity leave, and that it is thus intended to protect the special relationship between a woman and her child during the period which follows pregnancy and childbirth.
Upon appeal, the appellate court filed a preliminary reference before the CJEU requesting guidance as to whether EU law excludes the possibility of reserving only to female workers bringing up their children on their own, certain additional leave as stipulated in the collective agreement.
This judgment goes to show that despite the overriding legal principle entrenched in EU law that men and women are entitled to equal treatment at the workplace, not all inequality in treatment is tantamount to an illegal discriminatory act
The court affirmed that the EU directive on the principle of equality of men and women prohibits all direct or indirect discrimination on grounds of sex in relation to employment and working conditions. Nonetheless, after the expiry of the statutory maternity leave, a member state may reserve additional leave to a mother who is bringing up her children on her own, provided that such leave relates not to her capacity as parent but rather to the effects of pregnancy and motherhood.
The court observed that, naturally, if a collective agreement excludes from the benefit of such additional leave a male worker who is also bringing up a child on his own, there would be a difference in treatment between male and female workers which is prohibited by law. It is only if the grant of such leave is intended to protect the mother in connection with the effects of pregnancy and motherhood, that is, if it is intended to protect the woman’s biological condition and the special relationship between her and her child during the period following childbirth, that such leave may be held to be compatible with EU law.
The CJEU maintained that the mere fact that the additional leave immediately follows the statutory maternity leave, is not sufficient to arrive to the conclusion that it is legally correct for such leave to be reserved solely for female workers. It is essential for the national court to establish that such leave is, in actual fact, intended to protect mothers in connection with the effects of pregnancy and motherhood.
In arriving at it its conclusion, the national court ought to take into consideration the conditions for entitlement to the leave, its length and modalities of enjoyment as well as the legal protection that is attached to such period of leave.
This judgment goes to show that despite the overriding legal principle entrenched in EU law that men and women are entitled to equal treatment at the workplace, not all inequality in treatment is tantamount to an illegal discriminatory act. A careful examination of all the circumstances of each case is warranted in order to ascertain whether any unequal treatment is actually a form of direct or indirect discrimination or a permissible derogation from the cardinal rule of equality between the sexes at the workplace.
Mariosa Vella Cardona, freelance legal consultant