EU Law: Gender equality and pregnancy - has the EU done enough?

The EU has undoubtedly made substantial progress with regards to the laws on gender equality, moving from ensuring equal pay for work of equal value, to equal treatment in the work place and most recently pregnancy. The Pregnancy Directive 92/85/EEC has provided additional rights for those women already in work as opposed to those looking for work. The Dekker case, which occurred prior to the creation of the Directive, certainly demonstrates why further law was required in the area, as a woman was simply refused employment after interview on grounds of being pregnant.

However, since the enactment of the Directive, there have still been examples of discrimination. Webb for example, concerned an employee on maternity leave who was replaced with another female, who turned out to be pregnant. The employer dismissed the replacement woman on discovery of her pregnancy. Tele-Danmark concerned a lady who was successful at interview and was hired for the job, but later dismissed when the employer found out she was pregnant. Interestingly, the job in this case was only scheduled to be for a 6 month period, therefore it seems strange that the employer would dismiss the woman, unless she was in the last stages of her pregnancy, because she’d be able to complete most (if not all) of the work. In Melgar the woman had worked for the company for approximately 15 years, having had her contract renewed after each year of employment. However, on discovery of her pregnancy, the employer refused to renew her contract and the courts said that the employer must prove that the refusal to renew was based on some other reason (e.g. no longer needed her or she was no longer fulfilling her duties) other than pregnancy, otherwise he would be liable for discrimination.

Additionally, the case of Hertz demonstrated that the Pregnancy Directive will not protect women outside of their pregnancy or maternity leave. The woman was suffering from a pregnancy-related illness which caused her to take considerable absences from work after her maternity leave. The courts said that the employer was within his rights to dismiss her as the illness could no longer be related to the pregnancy and the time limit fell outside of the scope noted in Article 10 Pregnancy Directive. 

However, whilst the laws on pregnancy discrimination may be deemed far from perfect when attempting to protect women, it is in the area of paternity leave that the law shows a serious lack of development. Indeed, every child has two parents and it seems puzzling that whilst the EU has shown an intolerance to all other forms of discrimination, they would not show due concern for the fact that women are legally allowed time off work to bond with their new child, but men must continue to work. 

Cases such as Hoffman, in which a father was refused the state maternity benefit whilst on unpaid paternity leave, have demonstrated the severity of the situation. The court in Hoffman said that it had no interest in altering the gender roles from woman as mother and father as breadwinner. Similarly, Commission v Italy concerned a father who was refused the right to paternity leave; again demonstrating that fathers were being discriminated against. Thankfully, the recent case of Roca-Alvarez has shown a drastic change of heart with regards equal parenting rights; encouraging the notion of fathers gaining more and more rights. The Spanish authorities in Alvarez said that fathers were able to use part of the mother’s remaining maternity leave, when the mother returned to work. Interestingly, this is a topical issue in current news (May 2012) as the UK government have proposed to extend the rights of new fathers, allowing mothers in the UK to transfer the remainder of their maternity leave to their partners, where previously UK law had shown no interest in swapping gender roles.

Thus, whilst the EU has largely ignored the entitlement of males to take time off work to spend time with a new-born child, progress is finally being made some 10 years after the enactment of the Pregnancy Directive. However, whether that's down to the EU or individual member states is still under debate. Either way, it's clear that reform is still needed if men are to be given the same rights as their female counterparts; the benefits for men and women, were this to materialise, would be substantial. For males, the advantages speak for themselves - the chance to bond with their child, above all else! For females, the opportunity to return back to work following birth - it is often not fully acknowledged that women also have powerful and important roles aside from motherhood. It is also reasonable to assume that many of the on-going issues with discrimination against women on grounds of pregnancy would be combated if males were given the same rights to leave from work.