Kiiski v Tampereen kaupunki (European Court of Justice)

This is a Finnish case that went to the European Court of Justice and although the specific circumstances surrounding the claim would not be relevant in the UK, the reasoning of the European Court of Justice as to the intention behind the Equal Treatment Directive and the Parental Leave Directive would probably be followed in the UK.

Ms Kiiski was a teacher who was granted unpaid child care leave running from 11 August 2004 to 4 June 2005. Before going on this leave Miss Kiiski discovered that she was pregnant so requested that she alter her parental leave to end on 22 December 2004 so that she could go on full paid maternity leave in March 2005. However, the collective agreement under which Miss Kiiski was employed did not allow her to change the dates of her parental leave on the grounds of pregnancy. Miss Kiiski consequently brought a claim for sex discrimination. The Advocate General held that the matter was neither directly or indirectly discriminatory or a breach of the Pregnant Workers’ Directive. Normally the European Court of Justice will follow the Advocate General’s opinion but on this occasion they took a different view.

The European Court of Justice considered that both Directives indicated that a woman should be entitled to request a change in the dates of child care leave, at the time she claims her right to full paid maternity leave, to avoid being deprived of the benefits of maternity leave, a statutory right. In addition, not allowing a change in the parental leave dates would have the effect of preventing her husband from taking paternity leave as, according to Finish Law, a man and woman cannot take parental leave at the same time. It was also reasoned that the birth of a second child may prevent the objectives of the parental leave, to benefit the first child, from being fulfilled and in which case, maternity leave for the second child was more suitable and more desirable.

The collective agreement applicable to Miss Kiiski, regarding changes to parental leave, was found to be directly discriminatory on the grounds of sex and direct discrimination cannot be justified by other considerations.

It is possible that in the UK an employee could arrange parental leave several months in advance and upon becoming pregnant find that her maternity and parental leave periods overlap. If, as a result, the employee requests change in or cancellation of the parental leave the employee would probably have to comply. Employers would also have to agree to an employee’s request to bring forward any planned statutory annual leave period that may have been arranged for what would now be during maternity leave.