Pregnancy and maternity
EU law has viewed pregnancy and maternity as circumstances meriting special protection. Article 33 of the Charter of Fundamental Rights of the European Union provides for the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child, to reconcile family and professional life.
- Charter of Fundamental Rights of the European Union: Article 33 Family and professional life
Background and status
A directive adopted in 1976 (Council Directive 76/207/EEC) set out to protect pregnancy and maternity in the general context of equal treatment of women in the workplace. Since that time, treatment of women workers while pregnant and during their maternity period has been the subject of litigation. Both national courts and the European Court of Justice (ECJ) have grappled with the extent to which workers’ treatment (either in terms of specially favourable provisions or treatment ignoring their condition) constituted discrimination and violated the equal treatment requirement. For example, Case C-177/88 of the Court of Justice of the European Union concerned the equal treatment of men and women and the refusal to appoint a pregnant woman to a vacant post.
Many of the issues raised in litigation were resolved when Directive 76/207/EEC was revised and replaced by Directive 2002/73/EC. The latest consolidation of these directives is Directive 2006/54/EC.
- Court of Justice of the European Union: Judgment of the Court of 8 November 1990. Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus. Case C-177/88
- Council of the European Union: 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)
In 2008, the European Commission issued a proposal to update Council Directive 92/85/EEC, aimed at improving the health and safety of pregnant workers. It proposed increasing the minimum period of maternity leave from 14 to 18 weeks. The European Parliament proposed extending the maternity leave period further, to 20 weeks, and added two weeks of paternity leave under the same conditions as maternity leave. However, after this first reading, in October 2010, the text reached an impasse and on 1 July 2015, the Commission withdrew the maternity leave directive proposal. Following the withdrawal of the proposal, the Commission took a broader approach in addressing women's underrepresentation in the labour market. As part of this, it adopted the Work–life Balance Directive 2019 to enable parents and people with caring responsibilities to better juggle their work and family lives and to encourage a more balanced division of caring responsibilities between women and men.
- Council of the European Union: Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work–life balance for parents and carers and repealing Council Directive 2010/18/EU
The specific risks posed to the health and safety of pregnant workers and mothers, and the steps taken to remove those risks to comply with statutory obligations and/or voluntary codes of conduct, was addressed by Directive 92/85/EEC of 19 October 1992.
Health and safety
The directive required the Commission to draw up guidelines to assess the chemical, physical and biological agents and industrial processes considered hazardous for the safety and health of workers during pregnancy and maternity. It also put an onus on employers to evaluate any possible risks to the safety or health of pregnant and breastfeeding workers arising from exposure to such agents or processes and take appropriate measures, such as adjusting working conditions or working hours – or moving to another job or granting leave. The directive also provides for the release from night work obligations and entitlement to time off for antenatal examinations.
- Council of the European Union: Directive 92/85/EEC of 19 October 1992 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
Directive 2002/73/EC (Article 2(7)) stipulated that, following maternity leave, a woman was entitled to return to her job or an equivalent post with no less favourable terms and conditions, and to benefit from any improvements in working conditions to which she was entitled during her leave. The directive aligned with Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave with respect to the introduction of measures to encourage improvements in the health and safety at work of pregnant workers and those who have recently given birth or are breastfeeding. It also legislated that, in Member States that recognise distinct rights to paternity and/or adoption leave, necessary measures should be taken to protect the affected working women and men against dismissal, and following their absence, they should return to their jobs or equivalent posts on equally favourable terms and conditions. These directives are consolidated into Council Directive 2006/54/EC (cited above) and Council Directive 2010/18/EU respectively.
- Council of the European Union: Directive 2010/18/EU of 8 March 2010 implementing the revised framework agreement on parental leave concluded by BusinessEurope, Ueapme, CEEP and ETUC and repealing Directive 96/34/EC
The European Court of Justice has endeavoured in the course of its many judgments to achieve a protective status for pregnant women. For example, in a 2007 case, it granted protection against dismissal to an employee outside the period of protection against dismissal. Indeed, the Court found that the employer's intention to dismiss the employee was taken and her replacement prepared while the employee was pregnant. In another case from 2008, the Court sought to protect female employees who are attempting to become pregnant via in vitro fertilisation. Although a woman undergoing in vitro fertilisation whose eggs have not yet been implanted does not benefit from the directive on the protection of pregnant women, if she is dismissed during this time it could be considered discriminatory, even though the woman is not yet pregnant.
- Court of Justice of the European Union: Judgment of the Court of 11 October 2007. Nadine Paquay v Société d’architectes Hoet + Minne SPRL. Case C-460/06
- Court of Justice of the European Union: Judgment of the Court of 26 February 2008. Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG. Case C-506/06
The Court has delivered several judgments concerning the remuneration of female employees. Thus, an employee on maternity leave, even if she cannot claim her full remuneration, must retain not only her basic salary, but also the right to bonuses related to her professional status, her seniority and her professional qualifications. On the other hand, the employee cannot claim compensation linked to the actual performance of the work, such as payment of the allowance for on-call duty at the workplace.
- Court of Justice of the European Union: Judgment of the Court of 1 July 2010. Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung. Case C‑194/08
- Court of Justice of the European Union: Judgment of the Court of 1 July 2010. Sanna Maria Parviainen v Finnair Oyj. Case C‑471/08