Decision: There has been a certain amount of comment on the ECJ decision of Maistrellis v Ypourgos Dikaiosynis Diarfanelias Kai Anthropinon Dikaiomaton, which considered whether the parental leave legislation in Greece is contrary to the EU parental leave and equal treatment directives and whether as a result, the UK’s shared parental leave legislation is compliant with EU law. The decision does not directly impact UK law but provides an interest- ing insight into the ECJ’s approach to parental leave rights.
Under Greek law, female civil servants are entitled to nine months’ parental leave. However, male civil servants are only entitled to parental leave if the mother of their child works or exercises a profession. The ECJ found that this approach contravened the EU directives on parental leave and equal treat- ment and held that a parent cannot be deprived of the right to parental leave on the basis of the employment status of their spouse. The court also held that the situation of a male employee and female employee parent are comparable as regards the upbringing of children. Therefore the position under Greek law in relation to parental leave was also direct discrimination on the grounds of sex.
Impact: Unlike Greek law, UK legislation complies with the EU parental leave directive as it allows the minimum three months unpaid leave for men and women on an entirely equal basis. Therefore, the key issue, from a UK perspective, is the court’s pronouncement that, in relation to parental leave, treating fathers less favourably than mothers was liable to perpetuate inequality between men and women because it kept men in a subsidiary role to that of women when it came to exercising parental duties.
Under the SPL regime, any parents (father or mother) seeking to take SPL must first show they have a partner who is in some form of employment. However, under UK law, a mother whose partner does not work has an alternative right to take statutory maternity leave of the same length as SPL, whereas a father whose partner does not work is not entitled to comparable paternity leave for the same length as SPL. There is therefore an arguable similarity with the position under Greek law.
However, we do not think that this opens the door to challenge the UK’s SPL regime. In the UK, we have had paid maternity leave for many years. The SPL regime is a system by which a woman can elect to transfer some of her maternity leave to her partner. Under the European parental leave process, the issue was that women had a right to parental leave whereas a man did not. Here, we have a single right which is capable of being shared within a family unit. Unless it is inherently discriminatory to give women statutory paid maternity leave, then there is a fundamentally different situation between the UK’s SPL and the Greek unpaid parental leave. Additionally, the UK’s SPL is expressly about not perpetuating the traditional distribution of parental duties by allowing men the opportunity to participate.