On March 6, 2014, the European Court of Justice decided that the automatic exclusion of an employee from a training course because she has taken compulsory maternity leave constitutes an unfavorable treatment contrary to EU law, because the employee can then not benefit from an improvement in the working conditions in the same way as her colleagues can (Case C-595/12).

Factual situation

The plaintiff worked as a probationary deputy commissioner and – in 2009 - was successful in a competition for appointment as deputy commissioner in the corrections agency, and she was given permission to participate in a training course scheduled to begin on 28 December 2011. Since Ms. Napoli gave birth on 7 December 2011, she was placed, in accordance with the national Italian legislation, on compulsory maternity leave for three months, until 7 March 2012. The prison administration informed the plaintiff that she would be excluded from the course once the first 30 days of the maternity leave had elapsed and that payment of her salary would be suspended. The prison administration notified her that she would be admitted to the next course scheduled.

Court proceedings

The Italian administrative court asked the ECJ whether the directive on equal treatment of men and women precludes a national rule that excludes a woman on maternity leave from training that is part of her employment and is the precondition to be permanently appointed as a deputy commissioner and thus enjoy improved employment conditions but at the same time guarantees the right to participate in the next training scheduled, the scheduling of the next course being uncertain.

Plaintiff was reinstated in her original position

The court pointed out that under European Union law a less favorable treatment of a woman related to pregnancy or maternity leave constitutes discrimination on grounds of gender. A woman on maternity leave must have the right to return to her previous job or an equivalent job and benefit from any improvement in working conditions from which she would have benefitted during her absence. In the present case, the maternity leave had not influenced the plaintiff's position as a probationary deputy commissioner. Furthermore, the plaintiff was also reinstated in her position at the same place where she had been employed before her maternity leave.

Adverse impact on working conditions

However, being excluded from the vocational training course as a result of having taken maternity leave had a negative effect on the plaintiff's working conditions: her colleagues were able to attend the first course in its entirety and be promoted before her to the higher grade of deputy commissioner, receiving the higher salary corresponding to the promotion.

Automatic exclusion is unfavorable treatment

The court thus finds that automatically excluding the plaintiff from the course must be regarded as unfavorable treatment. This automatic exclusion takes into account neither the absence for maternity nor the requirement for an additional training course organized at a later, but uncertain, date. As a result, it does not comply with the principle of proportionality, particularly because the competent authorities are under no obligation to organize such a course at specific intervals.

Authorities can provide parallel remedial courses

In order to achieve substantive equality between men and women, the competent authorities could provide, if appropriate, equivalent parallel remedial courses for a female worker who returns from maternity leave, enabling her to be admitted within the prescribed period to the examination and thereby to be promoted without delay to a higher grade. In this way, the career development of such a female worker would not be hindered compared that of a male colleague who was successful in the competition and admitted to the initial training course.

The court concludes by pointing out that the provisions of the directive are sufficiently clear, precise and unconditional to have direct effect.

Tips for practice

Employers should be careful when excluding female employees on maternity leave from vocational courses. If the employee returns form maternity leave, additional courses should be organized if the employee suffers disadvantages from the compulsory absence compared to employees not on maternity leave. However, if courses are periodically scheduled for certain dates, it should suffice if the employee is referred to the next upcoming course.