Discrimination against female casual employees in public sector
In May 2005, the Equality Authority of the Ombudsman’s Office noted discrimination against female casual employees in the public sector, regarding current regulations on maternity leave.
On 13 May 2005, the Equality Authority of the Ombudsman’s Office submitted a report noting discrimination against female casual employees in the public sector, with regard to the current regulations on maternity leave. The Equality Authority’s report falls within the framework of the complaints procedure under the purview of the Ombudsman, and was prepared following a complaint from a female public servant from the Ministry of Education and Culture who works as a temporary monitor in a Cyprus high school. According to the complaint, women working as permanent employees in the public sector who give birth to triplets are granted 12 months’ maternity leave, whereas women working on a casual basis are granted only 16 weeks after the birth of triplets.
According to the current legislation, specifically Article 3 of the 1997 Maternity Protection Law and Article 30 of the Social Insurance Laws, 1980 to 2002, maternity leave for women employees is regulated in a unified manner. Sixteen weeks of maternity leave are provided for every female employee, whether she works in the public or in the private sector, and apply to unionised as well as non-unionised enterprises.
As regards, however, women working in the public sector who give birth to triplets or more, the length of maternity leave varies depending on their appointment status: it is 12 months with full pay for permanent employees, and 16 weeks for women employed on a casual basis. This regulation is based on Decision No. 28,574 of the Council of Ministers, whereas the differentiation between permanent and temporary staff follows from the manner in with the legislator defines 'public servant', since staff employed on a casual basis are excluded from the definition.
According to the Ombudsman’s report, the difference in the regulations involving the length of maternity leave on the basis of appointment status is based on the fact that women employed in the public sector are divided into two categories, permanent and casual staff, despite their homogeneity: both are dedicated to serving the state for the purpose of meeting the objectives of the public service.
However, as the report notes, according to case law a common denominator of equality is the homogeneity of the objects and the subjects of the law, ruling out equality between dissimilar and discrimination between similar entities. Again according to case law, 'homogeneity between things or the position or status of individuals for the purposes of equal treatment is not determined microscopically or pedantically but is guided by the essential congruence between them'.
Conclusions and recommendations
Since motherhood is one of the factors intensifying women’s inequality in the area of employment and work, positive or specific measures taken regarding working women are intended first of all to prevent and offset their disadvantaged position and protect motherhood. In this context, the Ombudsman has pointed out that the decision of the Council of Ministers to grant one year of maternity leave with full pay to public servants who give birth to triplets or more is a ground-breaking decision, in particular since it was taken in 1987. However, in the Ombudsman’s view, failure to extend this positive measure to women working on a casual basis raises a question of unequal treatment which is not objectively justified. In addition, apart from the legal argumentation explained above, the report stresses that in recent years the contracts of temporary employees in the public sector are as a rule renewed from one year to the next; as a result a large number of people are serving 'permanently' on a temporary basis.
Since the Ombudsman does not have the power to circumvent or the competence to abolish the provisions of legislation, she cannot recommend that the complainant be granted 12 months of maternity leave. Nevertheless, she has decided to submit her relevant report to the Minister of Labour and Social Insurance, in order to expedite the elimination of the existing discrimination against female casual employees in the public sector, either by preparing a relevant proposal to the Council of Ministers or by promoting a relevant legislative regulation.
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