European Court rules that parental leave can be deferred due to pregnancy

In the case of Ms Kiiski versus the City of Tampere, the European Court of Justice (ECJ) has ruled that a woman has the right to defer a period of parental leave already granted, in circumstances where she is again pregnant and entitled to maternity leave under Council Directive 92/85/EEC. The ECJ makes it clear that workers on parental leave remain in an employment relationship and that pregnant women do not need to be exposed to an occupational risk to gain entitlement to maternity leave.

Under the terms of Council Directive 92/85/EEC on measures to improve the health and safety of pregnant women and of Council Directive 76/207/EEC – the so-called Equal Treatment Directive – every woman who is pregnant has an entitlement to a period of maternity leave. In addition, she and the child’s father are entitled to a period of parental leave. The key issue, which arose in the Kiiski v Tampereen kaupunki C-116/06 case, is how entitlement to these two periods of leave is exercised, in circumstances where agreement has been reached to take one period of leave, which then coincides with entitlement to the other period of leave.

Background

Ms Kiiski is a teacher, working for the City of Tampere (Tampereen kaupunki) in southern Finland. She had asked her employer for a period of parental leave, which – under Finnish law – entitled her to a total of 10 months’ leave. This request was granted in early May 2004, with the intention that Ms Kiiski would begin her leave in August, returning to work in June 2005. However, Ms Kiiski became pregnant again and in July 2004 applied to have the leave entitlement amended to the period of August to December 2004.

In making the initial change request, Ms Kiiski did not mention whether there were any ‘unforeseeable and justified grounds’ for the change – something which the collective agreement required, although she subsequently remedied this, by providing information on her pregnancy. Her employer responded that, under the terms of the collective agreement, a pregnancy did not come within the definition of being ‘unforeseeable and on justified grounds’ and rejected the request. The child’s father then applied to his employer for parental leave, but his request was turned down because the law allowed only one parent at a time to take parental leave and Ms Kiiski was meant to be on parental leave. Ms Kiiski then applied to end her parental leave and to begin her maternity leave, allowing the child’s father his parental leave. However, her employer turned down this request, stating that the father’s leave entitlement did not amount to a ‘justified ground’ either.

Court case

Ms Kiiski claimed that her employer – the City of Tampere – had breached her rights not to be discriminated against on the grounds of her pregnancy under the Equal Treatment Directive. She argued that the directive guaranteeing her rights to maternity leave could not be bypassed. When the case came to the Finnish court, it noted that the collective agreement did not include pregnancy as a fundamental and unforeseeable change. The Finnish court was of the view that even if discrimination was shown, it might be justified, as the premature resumption of duties of a worker on parental leave affects other workers. However, rather than ruling definitively on the issue, it referred the case to the ECJ because it had implications for rights under the directives.

The European Court of Justice (ECJ) first considered whether Ms Kiiski, being on parental leave, could be seen as a ‘worker’ with rights under Directive 92/85/EEC. It held that she could and that the rights granted to pregnant women do not require women to be in work at the time when the right is exercised. Ms Kiiski could therefore be on parental leave at the moment when she wished to transfer to maternity leave. The fact that, because she was already on leave, she was not exposed to potential risks protected against under Directive 92/85 EEC, did not mean that she had lost her right to take maternity leave. Ms Kiiski had informed her employer about her pregnancy and therefore had established her rights to maternity leave.

Turning to the issue of the collective agreement and the conditions under which parental leave could be changed, the ECJ noted that these were cited as events such as serious illness, death or divorce but not pregnancy. However, the ECJ was clear that a pregnancy is unforeseeable. It constituted ‘fundamental changes to family life and to the relationships’ and represented a ‘substantial diminution’ of the ability of a parent to bring up the already born child. Therefore, the Finnish collective agreement had to be interpreted as including pregnancy.

Commentary

Although the facts of the case are very specific to the Finnish legislation and collective agreement, the ECJ decision is of general significance, in clarifying the employment status of workers on maternity leave and in ruling that pregnancy is an unforeseeable event.

Sonia McKay, Working Lives Research Institute

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