Are men entitled to supplementary maternity leave?

Decision from the European Court of Justice on Men’s Right to Supplementary Maternity Leave

The European Court of Justice has recently ruled on the legal position in cases where it is stated in the collective agreement that only female employees are entitled to supplementary maternity leave. The case concerned a male employee who, at the end of the leave, approached his employer with a request for supplementary leave. The employer rejected this. The reason was that only female employees were entitled to supplementary leave under the collective agreement. The male employee believed that this was discrimination in violation of the Equal Treatment Act. He therefore took legal action against the employer. But are men entitled to supplementary maternity leave?

Read more about the case and the decision below.

The Equal Treatment Act

The law originates from an EU directive and aims to protect employees against discrimination in the labour market on the basis of gender. It follows from section 1 of the Equal Treatment Act that the Act protects against both direct and indirect discrimination. Direct discrimination occurs when a person is treated less favourably than another person is in a similar situation on the basis of gender, cf. section 1(2). Indirect discrimination, on the other hand, exists where a provision, criterion or practice that appears to be neutral will place persons of one sex at a disadvantage compared to persons of the other sex, unless it is objectively justified by an objective purpose and the means of achieving it are appropriate and necessary, cf. section 2(3).

The Court’s Decision and Reasoning

So, Are Men Entitled to Supplementary Maternity Leave?

In the case, the European Court of Justice concluded that women can be offered additional leave. In that case, it must be justified by the woman’s biological condition, as well as the special relationship she has with her child in the period after birth. The Court noted that women’s access to additional leave applies only where:

• The leave is directly linked to the protection of the woman’s biological condition as well as the special relationship with the child after birth
• The leave is not longer than necessary to protect the above
• The scheme for the leave protects the woman from dismissal and poorer conditions

What You as an Employer Should Be Aware Of

As an employer, you should be aware that it may be illegal to also give male employees longer maternity leave. This is the case, as the male employee will then have a longer maternity leave than what men are entitled to under the Maternity Act. With the above judgment, the Court of Justice of the European Union lays down special requirements for supplementary leave to be granted. This is, among other things, that the supplementary leave must be justified by the biological condition. Since men are not in the same situation and condition as women are after birth, the same biological considerations cannot apply to men.

As an employer, you should also be aware that it may be discrimination to give male employees the same supplementary leave as women who have given birth. Because in that case, the men will get more leave than the woman in relation to the legal minimum.

You can read more about employment law here.