In Spain female employees are allowed to take time off work – up to an hour during the day or a half-hour reduction in the working day - to feed a baby under nine months of age. This right was originally introduced in 1900 in order to promote breastfeeding but it has since been amended by case law to cover bottle feeding. By statute the right can also be exercised by male employees, but only if the mother is also an employee.
In Álvarez v Sesa Start España, Mr Álvarez sought to exercise the right to take “breastfeeding” leave, but his request was rejected on the basis that his wife was self-employed. He brought proceedings in the Spanish Courts claiming that this constituted unlawful sex discrimination – a mother could have the leave provided she was an employee, but a father had his rights limited by the prior requirement that the mother must also have employee status.
The ECJ upheld Mr Álvarez’s claim. It took the view that once this leave was extended to cover bottle feeding, something that either parent could do, it was no longer appropriate to see it as specifically for the protection of new mothers. Instead it was granted to workers in their capacity as parents. To reinforce its conclusion the ECJ went on to say that such a provision would in fact only perpetuate traditional stereotypes by ensuring that women continue to bear the bulk of child caring responsibilities and that it would “keep men in a role subsidiary to that of women in relation to the exercise of their parental duties”.
You might think that UK employers have nothing to fear from this ruling, as there is no equivalent baby-feeding right in the UK. This decision may, however, have wider ramifications for the new right for fathers to take additional paternity leave from April next year. Some have suggested that allowing mothers to “transfer” their additional maternity leave to fathers after six months fatally undermines the argument that this later leave is solely a means of protecting new mothers. That would open up the way for fathers on additional paternity leave to argue for the same benefits from their employer as would be received by mothers on additional maternity leave.