Steve Peers

Most EU laws and court decisions on sex discrimination focus on improving women’s job opportunities and ensuring equal treatment in the workplace. A recent ruling by the Court of Justice of the European Union (CJEU) in the Maistrellis case tackles these issues from a different perspective: a father’s access to parental leave when the mother isn’t employed or looking for work. This judgment brings up important questions about how EU employment and discrimination laws affect family life.

Background

EU rules regarding parental leave originated from a 1996 agreement between social partners, which was later updated in 2010. This case involves the initial 1996 agreement, which highlights the social partners’ goal of balancing work and family life while promoting equal opportunities and treatment for both genders. The agreement’s introduction emphasizes work-life balance and promoting women’s participation in the workforce. It also encourages men to share family responsibilities equally.

The agreement primarily outlines “minimum requirements” and applies to all workers, regardless of gender, who have an employment contract or relationship recognized by national law. It grants both male and female workers the individual right to at least three months of parental leave after a child’s birth or adoption, until the child reaches a certain age (up to 8 years old) as determined by member states or social partners. To promote equal opportunities, this right is non-transferable.

Specific parental leave details are determined by national laws and/or collective agreements, as long as they adhere to the Directive’s minimum requirements. These details may include whether parental leave is full-time or part-time, a waiting period of up to one year of employment, adjustments for adoption circumstances, notice periods for employers, situations where employers can postpone parental leave, and special arrangements for small businesses.

The agreement protects workers from dismissal based on applying for or taking parental leave. They have the right to return to their previous or a similar job after their leave. They keep any rights earned before the leave, although national law or employers decide whether they are paid during leave. All social security matters are determined by national law. Lastly, workers can take time off for urgent family reasons, with the specifics and limitations determined by national law and social partners.

Judgment

In this case, a Greek judge wanted to take nine months of paid parental leave. Greek law restricted this benefit in two ways: it was only available to mothers, and contradictorily, it imposed strict conditions on fathers that didn’t apply to mothers. If a mother stayed home with the child, as in this situation, the father could only take leave if the mother was unable to care for the child due to illness or injury. Greek courts had already ruled the first limitation didn’t apply and then asked the CJEU if the second limitation violated EU law.

The CJEU decided it did, for two reasons. Firstly, it violated the parental leave agreement, which states parental leave is a non-transferable individual right. Therefore, building on previous rulings, it applies to each parent. The Directive’s potential limitations don’t allow for denying parental leave based on a spouse’s employment. The agreement’s overall context supports this literal interpretation: achieving a better work-life balance and encouraging men to take on more family responsibilities. The right to parental leave is also included in the EU Charter of Fundamental Rights.

Secondly, the Greek rule violated the EU Directive on sex discrimination in employment. Parental leave was considered a working condition, and men and women were considered “comparable” in raising children. Because the Greek law applied a condition to fathers that it didn’t apply to mothers, it constituted sex discrimination.

This distinction is likely to perpetuate traditional gender roles by keeping men in a secondary parenting role. While the Directive clarifies that it doesn’t override the parental leave agreement or the pregnant workers’ Directive, denying a father parental leave doesn’t benefit pregnant workers or new mothers, which is the purpose of the latter Directive.

Comments

It’s important to note that Greek law, at least for some workers, goes beyond the agreement’s minimum requirements – offering nine months of paid leave instead of three months unpaid. Very few parents within the EU have access to such generous parental leave. Even the two weeks of paid leave I received for each child is more than what many fathers receive. The EU’s pregnant workers’ Directive only requires a minimum of 20 weeks of maternity leave with sick pay (not full pay) for new mothers (parental leave is in addition to this). It’s unlikely the entire EU economy could handle such generosity, and I question if the Greek benefit has been reduced due to demands from the Troika.

It’s important to clarify that the CJEU isn’t demanding all employers provide fathers with nine months of fully paid leave per child. Instead, regardless of the parental leave duration (which doesn’t even need to be paid), it can’t be conditional on the mother’s employment status.

This judgment has several significant implications. First, while the CJEU has traditionally stated that EU sex discrimination law doesn’t apply to same-sex couples (refer to the Grant judgment), it can be argued that the parental leave agreement might. Although the agreement refers to “men” and “women,” the Court’s emphasis on parental leave as an individual right, along with the EU Charter’s ban on discrimination based on sexual orientation, suggests it could apply to same-sex parents. While it’s possible to use the EU’s framework equality Directive to challenge a limitation on parental leave based on sexual orientation, it’s also possible that the limitation is based on other factors. Regardless, a gay or lesbian parent might prefer to claim rights as a parent. However, it’s important to note that under current EU law, the civil status of same-sex couples (specifically access to marriage) is up to individual member states (for more on this, see Alina Tryfonidou’s recent blog post). This must also apply to adoption.

Second, the ruling is relevant to any family structure that doesn’t fit the traditional two-parent model. Based on the Court’s ruling, it follows that it shouldn’t matter if the parents aren’t married or if a single parent is claiming the parental leave right. Again, it’s worth noting that EU law doesn’t determine child custody – at most, it determines which court has jurisdiction in cross-border custody cases.

Third, while the ruling implicitly extends the parental leave agreement to less traditional families, it explicitly confirms its application to the most traditional family structure: those with a stay-at-home mother. As mentioned earlier, EU sex discrimination law has historically focused on encouraging mothers to work. However, in this case, the Court disregarded the numerous references to this objective in relevant EU laws and instead asserted the father’s individual right to parental leave and protection from sex discrimination.

However, a closer look at the case reveals that the judgment challenges the traditional family model in a different way. Instead of pushing mothers back into work (although this remains relevant in most cases), it encourages fathers to share household responsibilities. Thirty years ago, in the Hofmann judgment, the Court was wary of EU law changing the division of responsibility between parents concerning household gender roles. Now, it aims to ensure these roles are challenged.

It’s undoubtedly true that achieving gender equality requires challenging traditional gender roles. Interestingly, in this ruling, the Court advocates for challenging these roles even without a connection to the mother’s employment. The Court’s assertion that equal treatment regarding parental leave won’t negatively impact the health and safety of new mothers is quite the understatement: any new mother would surely appreciate the father’s help, even for a short time, let alone nine months. This approach subtly shifts the focus of the pregnant workers’ Directive from employed to stay-at-home mothers. Of course, the Court’s interpretation is socially justified: all new mothers can benefit from the father’s support.

Finally, the Court’s ruling implicitly stresses the importance of strengthening the bond between both parents and their children, regardless of the mother’s work status. It’s a good time to emphasize this connection as parents throughout the EU (including the Court’s staff) prepare for summer holidays. For parents, it’s an inevitable and bittersweet reminder that children grow quickly, and the time spent with them is precious.

Barnard & Peers: chapter 20

Photo credit: activebabiessmartkids.com.au