Commission reviews implementation of pregnant workers Directive
In March 1999, the European Commission adopted a report on the implementation of the 1992 pregnant workers' Directive. The Commission is generally satisfied with implementation, but identifies a number of areas in which the legislation of some Member States is argued to fall short of the Directive's requirements. In addition, the Commission expresses its desire to rethink a number of elements of the Directive in order to reduce discrepancies between countries and to improve equality of opportunity.
On 16 March 1999, the European Commission adopted a report (COM(1999)100 final) on the implementation of the EU Directive on the introduction of measures to encourage improvements in the health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding (92/85/EC). The Directive was adopted on 19 October 1992 on the basis of Article 118a of the EEC Treaty and had to be implemented in the Member States by 19 October 1994. The Directive was designed to protect this group of workers, who were perceived to be facing particular health and safety threats in the workplace, which could affect their own health, as well as the health of the unborn - or newly born child. The report argues that the Directive has, on the whole, been well implemented by the Member States. However, a number of problems have come to light which have led to the institution of infringement proceedings against a number of Member states.
As early as 1995, infringement proceedings for non-communication of national implementation measures were brought against Belgium, France, Germany, Greece, Italy, Luxembourg and Portugal. All of these were resolved quickly, with the exception of those against Luxembourg, where the Directive was finally transposed in 1998. Infringement proceedings against Luxembourg were subsequently discontinued.
The Member States were required, under Article 14(4) of the Directive, to submit to the Commission within four years of the adoption of the Directive a report on its implementation, indicating the views of representatives of both sides of industry. In 1996, the Commission issued a questionnaire (annexed to the report) to all Member States requesting information on the implementation of the Directive. The Greek and Dutch authorities (as well as the Luxembourg authorities, as a result of the infringement proceedings) did not return the questionnaire fully (the Netherlands did not supply a text of the legislation), and the views of the social partners were specifically noted only in the reports from Austria, Ireland, the Netherlands and Portugal.
Coverage of the Directive
The Directive applies to all pregnant workers and the Member States are found by the report to have ensured that both public and private sector employees are covered - as well as those on fixed-term contracts. However, a number of provisions of the implementing legislation of Austria, Greece and the UK (with regard to its dependent territory, Gibraltar) have been found to contravene the requirement for all pregnant workers to be covered by the Directive and will therefore be subject to infringement proceedings:
- in Austria, trainee nurses are not covered by the national legislation and student dentists and probationary teachers are only partly covered;
- in Greece, the armed forces, the police and domestic servants fall outside the scope of national implementing legislation; and
- in Gibraltar, the relevant regulations only cover women whose expected date of childbirth is after 5 May 1996.
In addition, the report raises concerns about the requirement contained in the implementing legislation recently passed by Luxembourg, which defines a pregnant women as a women who is pregnant and has informed her employer by way of a medical certificate sent by registered post and is affiliated to a social security scheme to fall under the scope of the Directive. The latter provision is claimed to be contrary to Article 2(a) of the Directive, which does not allow any such conditions to be imposed. The Commission therefore declares its intention to issue renewed infringement proceedings against Luxembourg.
The definition of breastfeeding workers and workers who have just given birth varies widely from Member State to Member State. In Sweden and Ireland for example, the protected period is 14 weeks, whereas in Spain, women are assumed to breastfeed for nine months.
Most Member States require employers to be informed of the pregnancy, and in a number of countries, entitlement to maternity rights and protection is dependent on the employer being informed of the pregnancy. In the UK, an employer which has not been informed is not required to carry out a risk assessment.
Article 4 of the Directive requires employers to complete an assessment of the risk of exposure to pregnant workers, workers who are breastfeeding or workers who have recently given birth, from the non-exhaustive list of agents, processes and working conditions mentioned in Annex I to the Directive.
The Commission is currently drawing up guidelines on the assessment of risks to workers covered by the Directive in conjunction with Member States and the Advisory Committee on Safety, Hygiene and Health Protection at Work. These are to be adopted in early 1999.
Most Member States had existing requirements in this area under their own health and safety rules and have amended their legislation according to the requirements of the Directive. However, Irish legislation is reported to consider the list in Annex I as exhaustive, which is said to contravene the provisions of the Directive. In Gibraltar, the requirement to carry out a risk assessment is missing altogether. The Commission is therefore indicating its intention to launch infringement proceedings against Ireland and the UK.
In most Member States, there is a requirement for the pregnant worker concerned to be informed of the outcome of the risk assessment
Article 5 of the Directive requires employers to adjust working conditions or working hours in order to avoid any identified risk. If this is not possible, the worker concerned must be moved to another job, or - if this proves impossible - granted leave. The report finds French and Spanish law to fall short in the respect that they do not make provision for the possibility of leave if this is the only way of protecting the mother and unborn child.
In Article 7, the Directive provides that if it is necessary, in order to protect her health or that of her baby (as shown by a medical certificate), that a woman does not work nights, she is entitled to be moved to day work or be grated leave. However, some Member States are found to go much further and ban women falling under the scope of the Directive from night work altogether. The Commission indicates its intention to bring infringement proceedings against the relevant Member States.
Article 8 of the Directive states that the workers covered must be entitled to a continuous period of at least 14 weeks of maternity leave allocated either before or after confinement, in accordance with national practice. National implementing provisions in this area vary widely from Member State to Member State and range from 14 weeks in the UK to 28 weeks in Denmark. Similar variations are in evidence in the level of payment received during this period. In Austria and the Netherlands, women are entitled to 100% of their salary during the entire period of maternity leave, whereas in the UK, Greece and Belgium a percentage of the woman's previous wage is paid for part of the maternity leave. In other Member States, varying amounts of social security benefit are paid during this period. All Member States subject entitlement to remuneration during maternity leave to various conditions linked to the length of service, residence or insurance. The Commission is currently carrying out a further assessment of the impact of the divergence of provisions in this area and in particular its impact on the free movement of workers.
All Member States have implemented the requirement for paid time off to attend ante-natal examinations.
The table below summarises maternity leave provisions in the Member States.
|Austria||16 weeks (extra 4 weeks for multiple births) - 8 weeks to be taken before the birth, 8 after. Paid at 100% earnings.|
|Belgium||15 weeks - at least 1 to be taken before birth and 8 weeks after. 1st month paid at 82% earnings, remaining period at 75% (up to a maximum level).|
|Denmark||18 weeks - 4 weeks to be taken before birth. Flat-rate payment (90% of salary).|
|Finland||5-8 weeks before birth and 9-12.5 after birth. Paid at 66% earnings.|
|France||16-26 weeks depending on number of children - 4 weeks to be taken before birth, 10 weeks after (18 for third or subsequent child). Paid at 84% earnings.|
|Germany||14 weeks (extra for multiple births) - 6 to be taken before birth. Paid at 100% earnings.|
|Greece||16 weeks - 8 to be taken before birth and 8 after. Paid at 100% earnings.|
|Ireland||14 weeks - 4 to be taken before birth. 4 extra can be requested unpaid. 14 weeks paid at 70% earnings (untaxed).|
|Italy||5 months - 2 months to be taken before birth. Paid at 80% earnings.|
|Luxembourg||16 weeks (extra for multiple births) - 8 to be taken after birth . Women who are breast feeding can take another 4 weeks. Paid at 100% earnings.|
|Netherlands||16 weeks - 4-6 to be taken before birth. Paid at 100% earnings up to a maximum level.|
|Portugal||90 days - 60 to be taken before birth. Paid at 100% earnings.|
|Spain||16 weeks (2 extra for multiple births) - at least 6 to be taken after birth. Paid at 75% earnings.|
|Sweden||60 days before actual or calculated delivery, after birth the mother's parental leave begins. Paid at 75% earnings.|
|UK||14 weeks - at least 2 to be taken after birth, up to 11 before birth. Paid at 90% earnings for 6 weeks and flat-rate pay equivalent to statutory sick pay for further 12 weeks. Women without 26 weeks' continuous service receive flat-rate pay for 18 weeks, or lower payment if self-employed, not employed or working few hours.|
Source: EU childcare network (1994) and Commission report on the implementation of the pregnant workers' Directive (1999).
Prohibition of dismissal
Under Article 10 of the Directive, employers are prohibited from dismissing workers who fall under the scope of the Directive, from the beginning of their pregnancy to the end of their maternity leave. Such dismissals were already unlawful in most Member States. An exception exists if the dismissal is for reasons unconnected to the pregnancy. In this situation, all Member States have a requirement for the employer to show objective reasons for dismissal unrelated to the pregnancy.
Article 11(1) of the Directive provides for the maintenance of rights under the employment contract, including the maintenance of a payment, whilst a woman is granted leave from work because of risks to her own or her baby's health, or from night work. Similar provisions for the protection of rights are made under Article 11(2) to cover the period of maternity leave. National provisions on payment during maternity leave are summarised in the table above.
The report argues that the Directive has had a significant impact in improving the position of pregnant women in employment, although the level of improvement differs from country to country, depending on the legislation previously in place. In exercising its duty to re-examine the Directive (under Article 14(6)), the Commission is now giving further consideration to a number of elements highlighted in the report.
Firstly, it will assess the impact of the differing definitions of "a worker who has given birth" and "a worker who is breastfeeding" applied in the different Member States. In addition, the requirement to inform the employer of a pregnancy in accordance with national procedures is argued to lead to differences in treatment and could limit the protection offered by the Directive, and therefore needs to be reassessed.
Secondly, a key concern is with the length of maternity leave granted and the levels of compensation afforded. It is argued that too long a period of leave could have negative implications in relation to reintegration into the workplace and that there is a fear that this can be used as an excuse to discriminate against women. It is also argued that the principle of equal treatment must not be breached by banning all pregnant women from night work - as is currently practised in a number of Member States.
Finally, as mentioned above, the Commission is concerned to assess the impact of different qualifying criteria for maternity leave and financial compensation during maternity leave. The aim is to reach a framework which affords sufficiently similar standards of protection to women in different Member States and employment situations, and to find an accommodation which serves to enhance equality of opportunity. (Tina Weber, ECOTEC Research & Consulting)