Shared Maternity Leave: member states can exclude employed father from maternity benefits where mother ineligible
Under the Pregnant Workers Directive (92/85/EC) (‘PWD’), member states must ensure female workers enjoy a continuous period of maternity leave of at least 14 weeks, the first 2 weeks of which are compulsory. The Equal Treatment Directive (76/207/EC – the relevant Directive at the time) (‘ETD’), confirms that member states must put into effect the principle of equal treatment in ‘employment, vocational training and promotion and working conditions’. The ETD also states that ‘men and women shall be guaranteed the same conditions without discrimination on the grounds of sex’ but that this is ‘without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity’.
Under Spanish law, the Workers’ Statute provides that, following a compulsory period of 6 weeks’ maternity leave, the mother can take or elect for the other parent to take a further 10 weeks’ maternity leave providing that both parents work and the mother is either employed or covered by a State social security scheme.
Mr Montull was an employee (and otherwise eligible to take maternity leave). His partner, Ms Ollé, was a self-employed lawyer and could either choose to be covered by the state scheme for self-employed workers (which allowed for maternity leave) or by an independent mutual scheme for lawyers (which did not). Ms Ollé chose the mutual scheme. Following the birth of their son in April 2004, Mr Montull applied for 10 weeks’ maternity benefit under the state scheme. The INSS refused on the basis that biological fathers do not have their own autonomous right to leave, only that which is derived from the mother’s right providing that the mother is eligible. Mr Montull went to the Tribunal Constitutional alleging that his right to equal treatment was being infringed. The Tribunal held the principle of a father’s derived right to maternity benefits was not contrary to the Spanish constitution. However, the Tribunal asked the ECJ to consider whether the PWD and ETD permitted national laws that allow fathers a derived right to maternity benefits only and whether such national laws are compatible with the principle of equal treatment.
The ECJ held that the PWD and ETD do not preclude national laws that require the mother to be employed or covered by a state social security scheme in order for the father to benefit from maternity benefits. In reaching its conclusion, the ECJ reiterated that the right to maternity leave is designed; (1) to protect the mother’s biological condition during and after pregnancy; and (2) to protect the special relationship between a woman and her child. The women’s right to suspend her employment for a minimum of 14 weeks must not be called into question and maternity leave cannot be taken from the mother against her will and assigned to the father. Notwithstanding these principles, the ECJ held that PWD and ETD did not prevent an employed mother from assigning maternity leave to the employed father (with the exception of the 2 weeks’ compulsory leave) and neither did they prevent a national law from excluding the employed father from maternity benefits where the mother was ineligible. The ECJ acknowledged this created a discrepancy between employed mothers and fathers contrary to the ETD, but noted that this principle was without prejudice to the protection afforded to women.
This decision will no doubt prove helpful when the principles of shared leave come into effect in the UK in 2015, as currently proposed. Whether, to avoid the issues in Montull, fathers will have their own autonomous right to maternity benefits remains to be seen.