Mark Azzopardi writes:

My friend, who is a teacher, is pregnant and will give birth towards the end of June. Since she is a teacher, her normal vacation leave is in summer. She is entitled to 14 weeks' maternity leave and she intends to take two weeks before giving birth and the remaining maternity leave later.

Her problem is that the remaining maternity leave will fall in her normal summer vacation leave and she therefore risks losing her entitlement to maternity leave.

When she checked with the department she was told that she is required to take her maternity leave in summer because maternity leave should be used at the time of the baby's birth and she cannot use it in September when school starts again.

Is this in conformity with EU law?

My view is that your friend should be entitled to both her maternity as well as to her paid leave. In other words, the fact that her maternity leave will coincide with her summer leave does not mean that she should lose her maternity leave.

Let me explain why.

Firstly, the EU Working Time Directive provides that EU countries must ensure that every worker is entitled to paid annual leave of at least four weeks. The conditions for, and entitlement to such, law depends on national law and practice.

Secondly, EU law on the protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, provides for a maternity leave period of 14 weeks. All EU countries must ensure that maternity leave is available to pregnant workers according to national laws and practice.

Thirdly, yet another EU law ensures that there is no discrimination on grounds of sex. This law maintains that the application of the principle of equal treatment with regard to working conditions means that men and women must be guaranteed the same conditions without discrimination on grounds of sex. Any provisions contrary to the principle of equal treatment, which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions, must be declared, null and void.

On the basis of these laws, the European Court of Justice held, in a 2004 judgement, that these laws must be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave.

The court argued that annual leave and maternity leave serve different purposes. The purpose of annual leave is to ensure that workers have a proper break. On the other hand, maternity leave is intended to protect women and the special relationship between a woman and her child.

In this case, the worker concerned was on maternity leave at a time which coincided with one of the periods of annual leave at her workshop, which had been fixed in a collective agreement. When she applied to take her annual leave following her maternity leave, her employer turned down her application.

When the case was referred by the national court to the European Court of Justice for a preliminary ruling, the court ruled that EU law requires that a worker must be able to take her annual leave during a period other than her maternity leave, even in those cases in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce.

Moreover, it added that EU law also applies to the entitlement of a worker to a longer period of annual leave (if this is provided for by national law) than the minimum laid down in the Working Time Directive.

To put it simply, maternity leave can be used over and above annual leave and it should not be lost simply because it coincides with normal vacation leave.

On the basis of the above, my understanding is that your friend ought to be entitled to her maternity leave over and above her school summer holidays. She has a dual entitlement to annual leave and to maternity leave and any agreement or decision to the contrary should be challenged.

Your friend should bring this information to the attention of the department concerned and try and sort out the matter before her maternity leave becomes due. If the department fails to comply with this court judgement then you should refer the matter back to me and I will be prepared to intervene on her behalf.

Ask your MEP on www.simonbusuttil.eu. Visit the new site at www.stopthedust.org.

Dr Busuttil is a Nationalist member of the European Parliament.