The case of Alvarez and the boomerang effect of maternity leave
K V Shaw
Senior Law Lecturer
Leeds Metropolitan University
© 2013 K V Shaw
First published in the Web Journal of Current Legal Issues
Citation: Shaw K V, 'The case of Alvarez and the boomerang effect of maternity leave' (2013) 19(2) Web JCLI
An exception is made in European Union sex equality law in Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions for national legislation which permits the giving of maternity leave to mothers only (hereinafter referred to as the Equal Treatment Directive). This Directive has been recast as Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)  OJ L 204/2.
The refusal by the Court of Justice of the European Union (CJEU) in Case 184/83 Hofmann v Barmer Ersatzkasse  ECR 3047and Case C-218/98 Abdoulaye and Others v Renault  IRLR 811 to accept that fathers are able to apply for maternity leave specifically given to women under national legislation on the grounds that it falls within the EU law maternity exemption, has been the subject of some considerable academic debate for some time (McGlynn 2000: 654-662)
The recent CJEU decision in Case C-104/09 Roca Alvarez ECR  1-08661 is important in that it concerns another application by a father challenging a national law which gives maternity leave specifically to mothers as being contrary to Council Directive 76/207/. However, unlike the cases of Case 184/83 Hofmann v Barmer Ersatzkasse  ECR 3047 and Case C-218/98 Abdoulaye and Others v Renault  IRLR 811, in this case the CJEU pointed out how such leave had been detached from the question of breastfeeding. Thus, in Case C-104/09 Roca Alvarez  ECR 1-0108661 the CJEU adopted a formalistic approach to the interpretation of the EU law maternity exemption and concluded that such national law fell outside of the scope of the exemption for maternity in the Equal Treatment Directive. The more recent recast of the Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)  OJ L 204/23 was not considered by the CJEU as it was not in force at the time the claim was brought.
This case note explains the CJEU’s ruling at a supranational level and discusses the impact of the CJEU’s findings in relation to its interpretation of the Equal Treatment Directive and what has been termed the boomerang effect of maternity protection at national level, namely the risks to young women of childbearing age when seeking employment in Member States that have legislation which permits maternity leave provisions only for women.
At supranational level, the status of sex equality has been proclaimed as a fundamental principle by both the Treaty of Lisbon and the Charter of Fundamental Rights. A key right of EU sex equality law, which is contained in the Equal Treatment Directive, is the right of men and women to receive equal treatment as regards access to employment, vocational training and promotion and working conditions. Article 1(1) of the Equal Treatment Directive therefore requires the Member States to give legislative effect at national level to the principle of equal treatment for men and women as set out in the Directive.
On the other hand, national legislation for the protection of pregnancy and maternity is made an exception to the Equal Treatment Directive in Article 2(1) (hereinafter referred to as the EU law maternity exemption). Thus national legislation which aims to protect women workers when pregnant or who have recently given birth by giving them leave is exempted from the requirements of the Equal Treatment Directive. Member States are therefore permitted to bring in or retain legislation which permits leave specifically for women who are pregnant or on maternity leave. Previous case law of the CJEU in Case 184/83 Hofmann v Barmer Ersatzkasse  ECR 3047 has interpreted the EU law maternity exemption in relation to a father’s application for national maternity leave that was permitted by national legislation. The CJEU in that case supported national legislation which provided maternity leave only to women on the grounds that such legislation is needed to protect a woman’s biological condition and the special relationship between a woman and her child following birth (para 17). Such a ruling has been heavily criticised by McGlynn on the grounds that by denying Mr Hofmann a right to maternity leave, it ignored the role of the father in infant care and perpetuated a stereotypical view of motherhood as being primarily concerned with the care of the child. (McGlynn 2006:35).
The recent judgment in the case of Case C-104/09 Roca Alvarez (hereinafter referred to as the judgment) has reignited discussion in this context by considering a father’s right to claim maternity leave for the purpose of feeding an unweaned child in a country where national legislation providing for leave has subsequently been amended so as not to mention breastfeeding The key issue in this case was whether such national law was contrary to the principle of equal treatment in the Equal Treatment Directive when such leave has been detached from the question of breastfeeding and consequently either parent is able to look after the child (para 14).
The claim was brought by Mr Alvarez who was employed by Sesa Start Espana ETT SA. He applied to his employer for paid time off work as provided for under Article 37(4) of the Workers’ Statute (Estatuto de los Trabajadores (‘Workers’ Statute’) as amended by Royal Legislative Decree 1/1995 of 24 March 1995, BOE No 75 of 29 March 1995, p.9654). The application was rejected on the grounds that the child’s mother was self-employed. She was therefore not entitled to such time off work. This in turn meant that he could not claim a derived right to leave to care for an infant.
Mr Alvarez initially brought an action at first instance level challenging this refusal. The first instance court rejected his claim on the ground that he was unable to claim a derived right to such leave on the grounds that his wife was self employed. Such leave was only available to employed persons. Mr Alvarez subsequently appealed.
On appeal to the Spanish High Court of Justice of Galicia, it was held that it had not acknowledged that ‘the leave provided for by the legislation had been detached from the biological fact of breastfeeding, so that it can be considered as time purely devoted to the child’ (para 14).
The Spanish High Court of Justice of Galicia therefore considered whether ‘the right asserted by the applicant could be conferred on him only if granting the right concerned exclusively to the mother would offend against the principle of equal treatment’ (para 18). As the principle of equal treatment is governed by EU law, the Spanish Court then referred a question to the CJEU for a preliminary ruling asking whether national legislation giving an independent entitlement to time off work for the purpose of feeding an unweaned child only to female workers was contrary to the principle of equal treatment (para 17)
At the time that the case was heard the relevant legislation was the Equal Treatment Directive. The CJEU pointed out that the key purpose of the principle of equal treatment for men and women is contained in Article1(1) of Equal Treatment Directive which states that the purpose of that directive is to put into effect in the Member States the principle of equal treatment for men and women as regards in particular working conditions. Furthermore, the CJEU referred to Article 2(1) which defines the principle of equal treatment as meaning ‘that there is to be no discrimination whatsoever on grounds of sex either directly or indirectly, by reference in particular to marital family status’. National legislation should therefore comply with these rules unless there is a derogation provided for in EU law in this context. Article 2(3) and (4) of the Equal Treatment Directive contains such a derogation from these provisions where there is national legislation on the protection of pregnancy and maternity. Article 2(3) and (4) further provide that ‘the application of such a derogation is without prejudice to provisions concerning the protection of women’. Thus, national legislation is able to derogate from the equal treatment principle on the grounds of protection of pregnancy and maternity. As the national legislation in question afforded special leave for employed women the CJEU considered whether the national legislation at issue in this case giving special leave to women was a justifiable difference in treatment pursuant to Article 2(3) and (4) of the Equal Treatment Directive.
Drawing upon previous case law in this context, the CJEU concluded that it was well established that Article 2(3) of the Equal Treatment Directive ‘recognizes the legitimacy in terms of the principle of equal treatment of the sexes, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows childbirth’ (para 27).
The CJEU pointed out that although a provision in respect of the protection of breastfeeding could clearly fall within the first limb, amendments to the national legislation at issue no longer mentioned breastfeeding (para 28). Furthermore, the CJEU pointed out that the national courts have accepted for many years that entitlement to this leave may be granted even in cases of bottle feeding’ (para 28) and that the national court itself noted that ‘the leave has been detached from the biological fact of breastfeeding, so that it can be considered as time purely devoted to the child and as a measure which reconciles family life and work following maternity leave’ (para 28) The CJEU therefore distinguished the situation in this case from Case 184/83 Hofmann v Barmer Ersatzkasse  ECR 3047 where leave was reserved to the mother to the exclusion of any other person and ruled that the leave in Case C-104/09 Roca Alvarez was ‘accorded to workers in their capacity as parents of the child. It cannot therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child’ (para 31) As such leave therefore fell outside the EU law exemption for maternity it was deemed to be contrary to the Equal Treatment Directive.
Although Article 2(4) of the Equal Treatment Directive provides an exemption for national legislation on the protection of pregnancy and maternity, Article 2(4) further provides that ‘the Directive is to be without prejudice to measures to promote equal opportunities for men and women, in particular where they remove existing inequalities which affect women’s position’. However the Advocate General in Case C-104/09 Roca Alvarez pointed out, ‘the opposite is in fact the case, inasmuch as legislation such as the Spanish legislation might contribute to less favourable treatment to employed women’ (para 46) One purpose of the Equal Treatment Directive is to go beyond requiring formal gender equality between men and women and instead to achieve substantive gender equality. This is considered by the CJEU when they reasoned that , ‘a key purpose of the Equal Treatment Directive identified by the CJEU is that of authorizing ‘measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in society’ (para 32) It then considered how the existence of legislation here did not permit Mr Alvarez to take advantage of leave for the purpose of infant care even where such care had had been detached from the biological fact of breastfeeding. This, the CJEU concluded, ‘is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties’ (para 36).
At supranational level, the principle of sex equality has fundamental status, the latter proclaimed most recently by both the Treaty of Lisbon and the Charter of Fundamental Rights. Although at the time the case was heard the Treaty of Lisbon was not in force, the status of gender equality was recognized by the CJEU as having fundamental status in the Case C-50/96 Schroder (2000) ECR I-743 where the CJEU ruled that Article 141 of the Treaty Establishing the European Community was an expression of a fundamental right. Such a finding, Prechal has argued, has particular significance for EU gender equality law in that ‘a fundamental right standard merits special protection in case of competing interests’ (Prechal 2005: 34). So it follows that, where the CJEU is faced with competing interests within EU law and gender equality is one of those competing interests, its steer for national courts should be to ensure that in light of its fundamental status gender equality is given special protection.
In the judgment the CJEU was given the opportunity of considering a father’s right to claim maternity leave for the purpose of feeding an unweaned child in a country where national legislation providing for leave has subsequently been amended so as not to mention breastfeeding A key issue in this judgment was whether such national law fell outside the EU law exemption for maternity once such leave has been detached from the question of breastfeeding and consequently either parent is able to look after the child (para 17)
While Equal Treatment Directive requires Member States to put into effect the principle of equal treatment for men and women as regards access to employment, an exception to the principle of equal treatment is made for national legislation which aims to protect women workers when pregnant and on maternity by giving them leave in Article 2(3) of the Directive. The addition of this provision was to ensure that Member States were able to retain legislation specifically to ensure that women workers who are on maternity leave are not discriminated on the grounds of sex. However, legislation for protection of pregnancy and maternity raise difficult issues at the national level. On the one hand, the EU law maternity exemption is an important part of helping to alleviate some of the structural disadvantages that women workers face in the workplace on account of pregnancy and maternity. Such leave gives time for the mother to recover from childbirth. Such time also helps facilitate breastfeeding in the maternity period. This is important as breastfeeding has been established as having significant health benefits for a new mother and her baby. So, for example, research by the World Health Organisation has highlighted how mothers who breastfeed have a reduced risk of breast and ovarian cancer (World Health Organisation, 3. Research has also highlighted how there are also significant health benefits for babies who are breastfed (World Health Organisation, 2003). Additionally, as other evidence suggests that a return to work early is a major factor cited for the cessation of breastfeeding (World Health Organisation, 2003) there has been a proposal to amend the EU Pregnant Workers Directive which proposes further breastfeeding rights (COM (2008) 600/4, Proposal for a Directive of the European Parliament and of the Council amending Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.
On the other hand, does restricting maternity leave to working mothers lead to young women being penalized in the workplace? It may be argued that employers are more likely to employ men or older women rather than employ young women leading to the so-called boomerang effect? (Advocate General Opinion in Case C-104/09 Roca Alvarez at para 48). Creating rights only for mothers runs the risk of drawing a distinction between younger female and male employees. In turn this may send a powerful message to employers that hiring younger women employees who may have a child could turn out to be more expensive over time than employing men or older women workers.
The CJEU in Case C-104/09 Roca Alvarez has confirmed that fathers are now able to take advantage of maternity leave where the issue of breastfeeding has been detached from the purpose of maternity leave. It is regrettable that the CJEU made no reference to the position of partners of a working mother especially when the recent Article 2(b) of Directive 2010/41 on Equal Treatment between men and women engaged in an activity in a self-employed capacity expressly refers to spouses and the life partners of self-employed workers as being entitled to a leave period of at least 14 weeks. Nor did the CJEU refer to the fundamental status of gender equality or the Charter of Fundamental Rights provisions in its ruling. Instead the CJEU adopted a formalistic approach to the interpretation of the purpose of maternity leave by drawing a distinction between leave which is to encourage breastfeeding and leave that is specifically for infant care when it ruled that fathers are able to apply for the latter leave as breastfeeding has been detached from the purpose of such leave. Such a formalistic approach by the CJEU in this case therefore not only acknowledges the role of the father in infant care when breastfeeding is not at issue, it is consistent with the fundamental status of gender equality for both men and women in respect of maternity leave when the issue of breastfeeding has been detached from the purpose of maternity leave at national level. As recent research has highlighted how employers are reluctant to employ young women of childbearing age because of the increased costs associated with maternity leave for women workers only at national level (Correll, Bernard, Paik, 2007), the recent ruling is to be welcomed. Leave for infant care only must now be available to both mothers and fathers. This may help to decrease the perception that it is the mother who is the primary carer of an infant. The perception that a mother is the primary carer for an infant is closely associated with theoretical debates concerning the dichotomy between paid recognized work in the public sphere and unpaid unrecognized caring work in the private sphere (Chinkin, 1999). Traditionally women have been associated with the latter. The recent ruling may help to diminish stereotypical views of motherhood as primarily responsible for infant care, as well as reconciling paid work with family life, by enabling the mother and the father to make an informed choice as to who is best placed to care for an infant. It also enables fathers to take an active part in infant care thus reducing the financial, time and emotional pressures on the mother and promoting a view that taking leave out from paid work to care for an infant is not just restricted to the mother . However, the ruling only refers to fathers and such a biological view of motherhood fails to acknowledge the cultural diversity of maternity regulation and culturally diverse views of motherhood across the 27 Member States. It is also difficult to square with EU citizenship and Article 33 of the Charter of Fundamental Rights which gives everyone the right to paid maternity leave and parental leave following the birth or adoption of a child.
In light of this and the considerable cultural diversity of different types of family throughout the EU (Wall, 2010) and the recognition in the law of various Member States of civil partnerships, it remains an open question whether the ECJ will subsequently recognise lifelong partners of a mother to take advantage of such leave for infant care where Member States’ law recognises in national law civil partnerships. For if a lifelong partner of a mother was entitled to take advantage of such leave, this could also help to reduce the financial, time and emotional pressures on the mother and further promote the view that taking leave out from paid work to care for an infant is not just restricted to the mother.
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