Posted by Gemma Ospedale, Partner
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The CJEU has given Judgment in a Greek case
The CJEU has given Judgment in a Greek case, the principle of which may have some effects on UK shared parental leave. The case of Maistrellis v Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton concerned a piece of legislation in Greece which allowed for 9 months parental leave for female civil servants but in contrast, fathers who are civil servants were only entitled to this parental leave if the mother of the child worked in, or exercised, a profession.
A magistrate was turned down for parental leave in respect of his young daughter because his wife was not employed. This legislation was challenged as being contrary to the Directive and Framework Agreement on parental leave and the recast Equal Treatment Directive.
The CJEU ruled that the Greek legislation contravened both Directives as discrimination on the grounds of sex in treating fathers less favourably than mothers in the provision of parental leave.
Unlike Greek law, the UK legislation allows for 3 months unpaid leave under the Directive to be available entirely equally between men and women. Therefore the finding that the Greek legislation would contravene the Directive is not relevant for the UK.
However what is potentially relevant is the finding that, by treating fathers less favourably than mothers as regards parental leave entitlement, the Greek legislation was discriminating on the grounds of sex contrary to the Equal Treatment Directive.
The question is how this applies to the new right to shared parental leave under British legislation. A mother whose male partner does not work is entitled to statutory maternity leave of the same length as SPL. However a father whose female partner does not work is not entitled to comparable leave. Therefore the father’s entitlement to SPL is dependant upon the entitlement of the mother. As with the Greek legislation it appears open to challenge that the eligibility rules for shared parental leave may be discriminatory on the grounds of sex contrary to EU law.
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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