It is illegal to prohibit a male employee from taking parental leave due to the fact that his wife is not in paid employment, the Court of Justice of the European Union has recently affirmed. Parental leave is an individual right which cannot be made to depend on the situation of the employee’s spouse.
EU law makes provision for the entitlement of workers to parental leave of at least four months on the birth or adoption of a child. Such leave, which in terms of EU law could be either paid or unpaid, may be taken until the child has reached an age determined by national law and/or collective agreements, but before the age of eight. All male and female employees are entitled to such parental leave irrespective of the type of employment contract, that is, whether they are employed on an indefinite, definite, part-time or full-time basis.
Greek law provides that a male civil servant is not entitled to paid parental leave if his wife is not in paid employment or does not exercise a profession, unless, due to a serious illness or injury, the wife is unable to meet the needs related to the upbringing of the child.
A Greek judge applied for paid parental leave but his application was rejected on the basis that the judge’s wife was not in paid employment. The Greek court, seized of the dispute which ensued, made a preliminary reference to the CJEU requesting guidance as to whether Greek law was compatible with EU law.
A male employee cannot be deprived of parental leave on the grounds of his wife’s employment status
The Court of Justice affirmed that a male employee cannot be deprived of the right to parental leave on the grounds that his wife is not in paid employment or does not exercise a profession. It maintained that, according to EU law, each parent is entitled, individually, to parental leave. This is a minimum requirement from which member states cannot derogate in their legislation or in collective agreements. A parent therefore cannot be deprived of the right to parental leave, and the employment status of the spouse is irrelevant.
The court also noted that Greek law discriminates between female and male civil servants because, while the former are always entitled to parental leave, the latter are only so entitled if the mother is in paid employment or exercises a profession. Such an approach, the CJEU observed, is not only discriminatory and illegal in terms of EU law but also militates in favour of a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties.
The EU directive dealing with parental leave was transposed into Maltese law by the Maltese Parental Leave Regulations which clearly provide that all employees, whether employed on a full-time or part-time basis, or on an indefinite or a fixed-term contract, are entitled to unpaid parental leave of up to four months until the child has attained the age of eight years.
Our law therefore makes no distinction between male and female employees insofar as an employee’s right to avail himself/herself of the right to parental leave is concerned.
Employers must therefore ensure full compliance with these rules and not discriminate, whether directly or indirectly, between males and females in the practical implementation of such rules.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.