In Malta, working parents, including adoptive ones, have the individual right to be granted parental leave on the grounds of birth, adoption or legal custody of a child to enable them to take care of that child for a period of three months. This entitlement is reserved to workers who have been in employment with their employer for at least 12 months, but can be availed of by the parents until the child attains the age of eight. It is over and above maternity leave, which is paid leave taken after a mother gives birth.

The employee, be it the father or the mother exercising the right of parental leave, is entitled to return to the same job that the employee occupied prior to the granting of parental leave, or, where this is no longer possible for any valid reason, to an equivalent or similar job consistent with the original contract of employment of the employee.

Parental leave in the EU however, varies from one country to another, since national EU governments are mainly responsible for setting their own employment policy. In a bid to improve work-life balance for EU workers, the EU Commission recently proposed the establishment of general rules for minimum labour standards. It plans to increase the minimum parental leave from three to four months per child by the year 2011, which, if approved, will mean that Maltese employees will benefit from an additional month of parental leave.

Moroever, the Commission intends to allow three months of each parent’s four months allowance to be transferred to the other. In addition, employees returning to work will have the right to request changes to their work schedules for a limited period.

Parental leave has also recently been the subject of a judgement delivered by the European Court of Justice (ECJ) after a preliminary reference was made to it by a Greek court. The case was instituted by a female employee against her employer after the birth of her twins. The employee argued that since she had delivered twins, she was entitled to two separate periods of parental leave. On the other hand, the employer contended that the woman was not entitled to double leave after the birth of twins in terms of Greek law.

Faced with this dispute, the Greek court made a reference to the ECJ for guidance on whether the granting of only one period of parental leave would be discrimating on the basis of birth, and whether the term “birth” is to be interpreted to mean that a right to parental leave is created twice in pregnancies with twins that result in two successive births of children.

In its ruling, the ECJ acknowledged that the task of bringing up twins entails greater effort and therefore is not comparable to the care of a single child. Yet, the ECJ dismissed the mother’s demand for double maternity leave after she gave birth to twins, and ruled that there is not an automatic recognition of the right to leave equal to the number of children born, in the case of twins for instance. The court stated that in such circumstances, it is the responsibility of the national legislator to set in place a parental-leave scheme that addresses the specific needs of parents of twins. This means that member states may address the specific needs of parents of twins through material assistance, financial aid or lengthening of the leave period without necessarily implementing the doubling of parental leave.

Parental leave enables new parents to take a break from work to devote themselves to their family responsibilities, whilst giving them the assurance that they will be entitled to return to the same job at the end of the leave. Any improvement on the entitlement to parental leave cannot but be regarded as a step in the right direction.

jgrech@demarcoassociates.com

Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.

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