Posted by Gemma Ospedale, Partner
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Shared Parental Leave – CJEU decision
In Montull v Instituto Nacional De La Seguridad Social the CGEU has given a decision which does not follow the Advocate General’s Opinion in a case regarding the right of men to maternity benefit under Spanish law, which may have implications in the UK. The circumstances were that the Claimant was an employee but his wife was self employed and as such outside the social security system. The Claimant sought payment of maternity benefit for the period after the compulsory leave period had expired under Spanish law. The Advocate General’s Opinion followed the decision of a case in 2010 which held that if only employed mothers held a primary right to time off to care for a child and that if she did not hold this right, the advantage of it could not be transferred to her partner, this would be discriminatory. In that case, the CJEU had held that it was discriminatory for only a mother who was an employee to hold the right to, and qualify for, leave, whereas a man who was employed did not hold the right to take that leave.
In the current case, the Advocate General’s reasoning was not followed, and the CGEU instead held that the self-employed mother of a child, who did not have the right to qualify for maternity leave because she fell outside the state’s social security scheme, had no rights which she could grant to the father to utilise. Interestingly an unsuccessful argument put forward in this case was that Spanish law was discriminatory for providing for an employed father to have the right to adoption leave even if the mother was not employed but the same right to shared maternity leave did not exist. The CJEU did not accept this, on the basis that this involved discrimination as between men, which is not protected by EU legislation. However this decision highlights what may be a similar anomaly in the forthcoming legislation in the Children and Families Bill, namely that if adoptive fathers have a primary right to adoption leave regardless of whether or not the mother is employed, why is there any difference with biological fathers with self-employed partners and why should they be placed in a less favourable position. It will be interesting to see whether the outcome of this case has any effect on any changes to the Children and Families Bill before it comes into force next year.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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