A recent ECJ ruling strengthens claims that fathers taking the new additional paternity leave rights (in force from next April) will be entitled to the same contractual benefits as an employer offers to its employees on additional maternity leave.
Our last e-bulletin noted the Coalition's decision to go ahead with the new additional paternity leave (APL) rights in force for babies due on or after 3 April 2011.
In addition to updating policies, employers should bear in mind that a number of legal issues previously arising only in relation to additional maternity leave (AML) will now be relevant to fathers taking APL, for example, priority over vacancies if their role is made redundant, entitlement during leave to bonus or pension, pay rises etc.
Employers who provide enhanced rights to those on AML (eg contractual maternity pay) may also face claims to equivalent rights for fathers on APL. Such claims may now have greater force following an ECJ ruling that a Spanish law permitting time off for bottle or breast feeding a baby under nine months was unlawful where all mothers were entitled but fathers were only entitled if the child's mother was also an employee.
The ECJ viewed the leave as time purely devoted to the child which reconciles family life and work, and not as a measure intended to ensure the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child. As such, there was no justification for distinguishing between men and women. (Alvarez v Sesa Start Espana, ECJ)
The argument here will be that, given that from April 2011 AML can in effect be transferred to the father as APL, the purpose of AML can no longer be to protect the special relationship between mother and child. If so, an employer should provide the same rights and benefits to employees on AML and APL.
Employers who currently provide enhanced rights such as contractual maternity pay and returners' bonuses to those on AML will need to consider whether and how to extend these to APL.