Parental Leave Issues
Case Law
Kiiski [2007] EUECJ C-116/06
“First and third questions
It should be noted from the outset, first, that, according to the information provided by the referring court, it is Ms Kiiski’s employer’s refusal to interrupt the child-care leave she was enjoying which deprived her of the benefits linked to maternity leave provided for under Directive 92/85. Second, if Ms Kiiski’s employer did not intend, for various reasons, to accede to her three successive requests, his refusal was always based, at least indirectly and implicitly, on the application of national provisions governing child-care leave which in general exclude pregnancy from the justified grounds authorising an alteration of the period of that leave. Finally, the contents of the case file submitted to the Court do not justify a finding that the child-care leave does not fall among the categories of parental leave covered by the regime provided for under the framework agreement.
In that context, the national court’s first and third questions should be understood as seeking essentially to ascertain whether Article 2 of Directive 76/207, which prohibits all direct and indirect discrimination on grounds of sex with regard to working conditions, and Articles 8 and 11 of Directive 92/85, relating to maternity leave, preclude the application of national provisions governing child-care leave which in general exclude pregnancy, including the final phase of the pregnancy corresponding to the period of maternity leave, from the justified grounds authorising an alteration of the period of that child-care leave.
The answer thus sought presupposes first that the person who, like Ms Kiiski, claims the rights inherent in maternity leave, falls within the scope of Directive 92/85, that is to say that she is a ‘pregnant worker’ for the purposes of Article 2(a) of that Directive.
According to that provision, ‘pregnant worker’ means a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice.
It follows that the Community legislature, with a view to the implementation of Directive 92/85, intended to give the concept of ‘pregnant worker’ a Community meaning, even if, in respect of one element of that definition, namely that relating to the method of communication of her condition to her employer, it refers back to national legislation and/or national practice.
As to the concept of worker, it must be borne in mind that, according to settled case-law, it may not be interpreted differently according to each national law but has a Community meaning. That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17; Case C-176/96 Lehtonen and Castors Braine [2000] ECR I-2681, paragraph 45; Case C-138/02 Collins [2004] ECR I-2703, paragraph 26; Case C-456/02 Trojani [2004] ECR I-7573, paragraph 15; and Case C-392/05 Alevizos [2007] ECR I-0000, paragraph 67).
Moreover, the Court has held that the sui generis nature of the employment relationship under national law cannot have any consequence in regard to whether or not the person is a worker for the purposes of Community law (see Case 53/81 Levin [1982] ECR 1035, paragraph 16; Case 344/87 Bettray [1989] ECR 1621, paragraphs 15 and 16; Case C-188/00 Kurz [2002] ECR I-10691, paragraph 32; and Trojani, paragraph 16).
While it is not disputed that Ms Kiiski, before enjoying her child-care leave, was in an employment relationship having the essential feature referred to in paragraph 25 of this judgment and was therefore a worker for the purposes of Community law, it is also necessary, in order for her to be able to claim the rights made available by Directive 92/85, that she did not lose that status as a result of her enjoyment of child-care leave.
In that regard, it must be pointed out, in the first place, that Directive 92/85 does not exclude from its scope the situation of workers who already enjoy leave such as child-care leave.
It is true that Directive 92/85 aims, in accordance with the first, fifth and sixth recitals of its preamble, to improve the working environment in order to protect the health and safety of workers, especially the pregnant woman at work. Nevertheless, according to the 14th recital to the preamble of that Directive, the Community legislature took the view that the vulnerability of pregnant workers, workers who have recently given birth or who are breastfeeding made a right to maternity leave necessary.
While the Community legislature thereby intended in particular to protect pregnant workers, in a general manner, from the risks which they could face during their employment, by giving them a right to maternity leave which enables them temporarily to leave their jobs, it is common ground that it did not subject this right to the condition that the pregnant woman who claims enjoyment of that leave must herself be in a situation in which she is exposed to such a risk.
The fact that Directive 92/85 aims to improve the protection of pregnant women at work cannot therefore itself justify the assumption that the Community legislature intended to exclude a worker from the enjoyment of that leave if, at the time when she wishes to take up such leave, she has already left her job for a temporary period because she is enjoying another form of leave.
It should be pointed out, in the second place, that according to paragraph 7 of Clause 2 of the framework agreement, the Member States and/or management and labour are to define the status of the employment contract or of the employment relationship for the period of parental leave provided for under that agreement. It follows that the Community legislature, in adopting Directive 96/34 which puts into effect that agreement, considered that the working relationship between the worker and his employer was maintained during the period of child-care leave.
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On the basis of the foregoing, it follows that the period of at least 14 weeks preceding and after childbirth must be regarded as a situation which restricts the achievement of the purpose of the parental leave provided for under the framework agreement and therefore as a justified ground for authorising an alteration of the period of that leave.
Pregnancy is, however, in general excluded by provisions of national law such as those at issue in the main proceedings from the justified grounds listed, whereas the serious illness or death of the child or of the other parent, and divorce, are listed as such justified grounds for authorising an alteration of the period of child-care leave.
In those circumstances, by not treating in an identical manner a situation which, with regard to the objective of the parental leave provided for under the framework agreement and the restrictions which may compromise its achievement, is in fact comparable to that resulting from the serious illness or death of the child or of the spouse, or from divorce, such provisions prove to be discriminatory, without such treatment being objectively justified.
According to settled case-law, observance of the principles of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-248/04 Koninklijke Coöperatie Cosun [2006] ECR I-10211, paragraph 72, and Case C-303/05 Advocaten voor de Wereld [2007] ECR I-0000, paragraph 56).
Because discriminatory treatment resulting from provisions such as those at issue in the main proceedings are capable of affecting women only, those provisions, which define the conditions applicable to the employment relationship maintained during the child-care leave, constitute direct discrimination on grounds of sex prohibited by Article 2 of Directive 76/207 (see, to that effect, Busch, paragraph 38).
Moreover, the Court has already held that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law (Commission v Luxembourg, paragraph 33, and Case C-124/05 Federatie Nederlandse Vakbeweging [2006] ECR I-3423, paragraph 24).
Community law therefore precludes a decision of an employer such as that taken in this case on 10 December 2004, the consequence of which is that a pregnant worker is not permitted to obtain, at her request, an alteration of the period of her child-care leave at the time when she requests her maternity leave and which thus deprives her of the rights inherent in that maternity leave which result from Articles 8 and 11 of Directive 92/85.
In the light of the foregoing, the answers to the first and third questions referred must be that Article 2 of Directive 76/207, which prohibits all direct and indirect discrimination on grounds of sex as regards working conditions, and Articles 8 and 11 of Directive 92/85 concerning maternity leave, preclude national provisions governing child-care leave which, in so far as they fail to take into account changes affecting the worker concerned as a result of pregnancy during the period of at least 14 weeks preceding and after childbirth, do not allow the person concerned to obtain at her request an alteration of the period of her child-care leave at the time when she claims her rights to maternity leave and thus deprive her of the rights attaching to that maternity leave.
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 2 of 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, as amended by Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002, which prohibits all direct and indirect discrimination on grounds of sex as regards working conditions, and Articles 8 and 11 of Council 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 (10th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), which govern maternity leave, preclude provisions of national law concerning child-care leave which, in so far as they fail to take into account changes affecting the worker concerned as a result of pregnancy during the period of at least 14 weeks preceding and after childbirth, do not allow the person concerned to obtain at her request an alteration of the period of her child-care leave at the time when she claims her rights to maternity leave and thus deprive her of the rights attaching to that maternity leave.
Meerts [2009] EUECJ C-116/08
(22 October 2009)
“As a preliminary point, it should be borne in mind that, by its question, the referring court seeks an interpretation of Clause 2.4 to 2.7 of the framework agreement on parental leave in the context of proceedings relating to the calculation of the compensation for dismissal payable on the ground that the employer failed to observe the statutory period of notice.
It is apparent, however, from the wording of Clause 2 that under point 4 it seeks to protect workers against dismissal on the grounds of an application for, or the taking of, parental leave and under point 5 it recognises the right of workers, at the end of parental leave, to return to the same job or to an equivalent or similar job.
It follows that, by its question, the national court is essentially asking whether Clause 2.6 and 2.7 of the framework agreement on parental leave must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place.
As is apparent from the first paragraph in the preamble to the framework agreement on parental leave and from paragraph 5 of its general considerations, the framework agreement constitutes an undertaking by the two sides of industry, represented by the general cross-industry organisations, namely UNICE, CEEP and the ETUC, to introduce, through minimum requirements, measures to promote equal opportunities and treatment between men and women, by offering them an opportunity to reconcile their work responsibilities with family obligations.
It is also clear from paragraph 6 of the general considerations of the framework agreement that measures to reconcile work and family life should encourage the introduction in the Member States of new flexible ways of organising work and time which are better suited to the changing needs of society, taking the needs of both undertakings and workers into account.
The framework agreement on parental leave is in line with the fundamental objectives enshrined in paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on equal treatment for men and women, to which the framework agreement refers and which is also mentioned in Article 136 EC, objectives which are associated with the improvement of living and working conditions and with the existence of proper social protection for workers, in the present case those who have applied for or taken parental leave.
From that point of view, Clause 2.6 of the framework agreement on parental leave states that rights acquired or in the process of being acquired by the worker on the date on which parental leave starts are to be maintained as they stand until the end of parental leave.
It is apparent from both the wording of Clause 2.6 and its context that that provision is intended to avoid the loss of or reduction in rights derived from an employment relationship, acquired or being acquired, to which the worker is entitled when he starts parental leave, and to ensure that, at the end of that leave, with regard to those rights, he will find himself in the same situation as that in which he was before the leave (see, to that effect, Case C-537/07 Gómez-LimónSánchez-Camacho [2009] ECR I-0000, paragraph 39).
It is true that the concept of ‘[r]ights acquired or in the process of being acquired’ referred to in Clause 2.6 is not defined in the framework agreement on parental leave and nor does that agreement refer to the law of the Member States for the definition of that concept.
However, it follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, in particular, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-323/03 Commission v Spain [2006] ECR I-2161, paragraph 32, and Case C-13/05 Chacón Navas [2006] ECR I-6467, paragraph 40).
Having regard to the objective of equal treatment between men and women which is pursued by the framework agreement on parental leave, as recalled in paragraph 35 above, Clause 2.6 must be interpreted as articulating a particularly important principle of Community social law which cannot therefore be interpreted restrictively (see, by analogy, Case C-173/99 BECTU [2001] ECR I-4881, paragraph 43; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 38; Case C-268/06 Impact [2008] ECR I-2483, paragraph 114; and Joined Cases C-350/06 and C-520/06 Schultz-Hoff [2009] ECR I-0000, paragraph 22).
It is clear from the objectives of the framework agreement on parental leave, recalled in paragraphs 35 to 37 above, that the concept of ‘[r]ights acquired or in the process of being acquired’ within the meaning of Clause 2.6 of the framework agreement covers all the rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts.
Such rights and benefits include all those relating to employment conditions, such as the right of a full-time worker on part-time parental leave to a period of notice in the event of the employer’s unilateral termination of a contract of indefinite duration, the length of which depends on the worker’s length of service in the company and the aim of which is to facilitate the search for a new job.
Clause 2.7 of the framework agreement on parental leave refers to the Member States and/or to management and labour for the determination of the status of the employment contract or employment relationship during the period of parental leave, including the extent to which the worker may, during that period, continue to acquire rights vis? -vis the employer. On the basis of the purpose and structure of the framework agreement, that reference is to be understood without prejudice to Clause 2.6, which states that ‘[r]ights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained as they stand until the end of parental leave’.
That body of rights and benefits would be compromised if, where the statutory period of notice was not observed in the event of dismissal during part-time parental leave, a worker employed on a full-time basis lost the right to have the compensation for dismissal due to him determined on the basis of the salary relating to his employment contract.
As the Advocate General observes in points 54 and 55 of her Opinion, national legislation which would result in the rights flowing from the employment relationship being reduced in the event of parental leave could discourage workers from taking such leave and could encourage employers to dismiss workers who are on parental leave rather than other workers. This would run directly counter to the aim of the framework agreement on parental leave, one of the objectives of which is to make it easier to reconcile working and family life.
At the hearing, the Belgian Government explained that, in its view, in accordance with the national legislation applicable, where a worker employed on a full-time basis and on full-time parental leave, the maximum duration of which is three months, was dismissed without notice, his compensation would be determined on the basis of the salary relating to his contract, whereas if the dismissal concerns a worker also employed on a full-time basis, but on part-time parental leave, whether this corresponds to half or one fifth of normal working hours, the salary to be taken into consideration is that being received during parental leave, on the ground that, during that period, his full-time employment contract is converted into a part-time employment contract.
According to that government, that measure is justified, since there would be discrimination if two workers employed on a full-time basis, one on part-time parental leave and the other working full-time, were entitled in the event of dismissal to receive equivalent compensation, since two different situations would be treated in the same way.
Such an argument cannot be accepted.
It is true that, whilst on part-time parental leave, a worker employed under a full-time contract does not work the same number of hours as someone working full-time. However, that does not mean that the two workers are in a different position in relation to the initial employment contract with their employer.
Under national legislation such as that applicable in the main proceedings, the full-time worker, whilst on part-time parental leave, continues to acquire years of service in the company, which are taken into account in calculating the statutory period of notice in the event of dismissal, as if he had not reduced his working hours.
In addition, the argument of the Belgian Government does not take into account the fact that during part-time parental leave the full-time worker receives, in addition to the salary relating to the hours that he continues to work, a fixed allowance, paid by the Office national de l’emploi, which is deemed to compensate for the reduction in salary.
Furthermore, the period during which a full-time worker is on part-time parental leave is of limited duration.
Finally, in the two cases compared by the Belgian Government, the unilateral termination by the employer would relate to a full-time employment contract.
It therefore follows that Clause 2.6 and 2.7 of the framework agreement on parental leave must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place.
On those grounds, the Court (Third Chamber) hereby rules:
Clause 2.6 and 2.7 of the framework agreement on parental leave concluded on 14 December 1995, which is annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 December 1997, must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place.
Sharma & Anor -v- Employment Appeals Tribunal
[2010] IEHC 178
Hedigan J.
“19. The grounds for presumed unfair dismissals have grown over the years through a series of amending legislation to the Act of 1977. It is expressly stated in several of the amending pieces of legislation that the one year’s continuous service requirement, as set down in s.2(1)(a) of the Act of 1977, is not applicable to particular grounds for presumed unfair dismissal. Those pieces of amending legislation are as follows:-
Section 14 of the Unfair Dismissals (Amendment) Act 1993
This provides inter alia that s. 2(1)(a) of the Act of 1977 shall not apply “if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2)(a) of the said section 6” i.e. the employee’s membership or proposed membership of a trade union or excepted body under the Trade Union Acts 1941 and 1971.
Section 38(5) of the Maternity Protection Act 1994
This provision inserted s.6 (2A) into the Act of 1977. In essence, it provides, inter alia, that for the purposes of the sections of the Act of 1977 which deal with pregnancy and maternity matters, the term “employee” includes a person who would otherwise be excluded from the Act by virtue of inter alia paragraph (a) of section 2(1) of the Act of 1977.
Section 25 of the Adoptive Leave Act 1995
Section 24 of the Act of 1995 inserted a new ground for a presumed unfair dismissal i.e. the exercise or contemplated exercise by an adopting parent of her right under the Act of 1995 to adoptive leave or additional adoptive leave. Section 25 of the Act of 1995 substituted the above s.6(2A) of the Act of 1977 so that the term “employee” and “adopting parent” include a person who would otherwise be excluded from the Act by inter alia paragraph (a) of section 2(1) of the Act of 1977.
Section 25(2)(b) of the Parental Leave Act 1998
Section 25(2)(a) of the Act of 1998 inserted s.6(2)(dd) into the Act of 1977. It provides for the dismissal of an employee for the exercise or proposed exercise of the right to parental leave or force majeure leave under and in accordance with the Act of 1998 to be deemed unfair. Section 25(2)(b) provides that the term “employee” includes a person who for the purposes of s.6(2)(dd) would otherwise be excluded from the Act of 1977 by inter alia paragraph (a) of section 2(1) of the Act of 1977.
Section 27(2)(b) of the Carer’s Leave Act 2001
Section 27(2)(a) of the Act of 2001 added, in s.6(2)(dd) the exercise or proposed exercise by the employee of the right to carer’s leave under and in accordance with the Carer’s Leave Act 2001 to the list of grounds for presumed unfair dismissal. Section 27(2)(b) goes on to provide that the term “employee” includes a person who would otherwise be excluded from the Act of 1977 by inter alia paragraph (a) of s.2(1) of the Act of 1977.
Section 36(2) of the National Minimum Wage Act 2000
This provision stipulates that the dismissal of an employee in contravention of s.36(1) (including inter alia for having exercised or proposing to exercise a right under the Act) will be deemed to be an unfair dismissal for the purposes of the Unfair Dismissals Acts 1977-1993 and that it is not necessary for such an employee to have at least one year’s continuous service.
20. In contrast, s.27 of the Act of 2005 makes no mention of whether s.2(1)(a) of the Act of 1977 is applicable or not. I am satisfied, having regard to the expressio unius est exclusio alterius principle that the one year’s continuous service requirement must apply. This Court may not read into the Act of 1977 a specific provision lifting the service requirement specified in s.2(1)(a) in circumstances where the legislature has expressly stated in other enactments that the requirement was not to apply in respect of other grounds for dismissal but has not done so therein in respect hereof. It seems to me for these reasons that the respondent rightly concluded that it did not have jurisdiction to hear the applicants’ claims.
The reasons given for the decision of the respondent
21. The courts have held that the duty of administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons for the decision need be given. In Faulkner v. Minister for Industry and Commerce [1997] E.L.R. 107 O’ Flaherty J. stated as follows at p.111:-
“I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”
In The State (Creedon) v. Criminal Injuries Compensation Tribunal SIZE=2 FACE=”Verdana”> [1988] I.R. 52 at p.55 Finlay C.J. summarised the duty on administrative tribunals as follows:-
“Once the Courts have a jurisdiction and if that jurisdiction is invoked, an obligation to enquire into and, if necessary, correct the decisions and activities of a tribunal of this description, it would appear necessary for the proper carrying out if that jurisdiction that the Courts should be able to ascertain the reasons by which the tribunal came to its determination. Apart from that, I am satisfied that the requirement which applies to this Tribunal, as it would to a court, that justice should appear to be done, necessitates that the unsuccessful applicant before it should be made aware in general and broad terms of the grounds on which he or she has failed. Merely, as was done in this case, to reject the application and when that rejection was challenged subsequently to maintain a silence as to the reason for it, does not appear to me to be consistent with the proper administration of functions which are of a quasi-judicial nature.”
22. The reasons given by the respondent for its determination are set out above in paragraph 8. The reasons given could well be described as telegraphic. It is doubtful they would satisfy the requirement for broad reasons. It would have been preferable that the reasons for the decision be outlined in clearer, more expansive language.
23. However, the applicants were aware from the outset that an issue might arise regarding the application of s.2(1)(a) of the Act of 1977 given that it was addressed by their solicitor in his written submissions furnished in advance and in oral submissions on the day of the hearing. More importantly, the case the applicant made in these very proceedings was centred around whether the one year’s service requirement applied to dismissals under the Act of 2005. The challenge to the reasons the respondent gave was presented only as an ancillary matter to this Court. There was nothing in the lack of reasons given that prevented the applicants from coming to this Court to make their case. In this case the lack of reasoning on the part of the respondent cannot have affected the interests of the applicants in circumstances where they demonstrated an understanding of the decision reached by virtue of the principal point they canvassed in these proceedings.
may pose a problem.
Conclusion
25. In summary, I am satisfied that employees who pursue claims under the Unfair Dismissals Acts 1977-2007 for penalisation, as defined in s.27(1) of the Act of 2005 must have one year’s continuous service with the employer who dismissed them. In addition, I find that the reasons provided to the applicant are not clear on their face but were clear to the applicants, having regard to the central challenge they made in these proceedings and thus adequate. I would refuse the reliefs sought in these proceedings.
Carey v. Penn Racquet Sports Ltd.
[2001] IEHC 8
Ms. Justice Carroll
“This is an appeal under section 20 of the Parental Leave Act, 1998 (The Act) from a determination of the Employment Appeals Tribunal on a point of law. The Act was passed to comply with the State’s obligations under Council Directive 96/34/EC of 3 June 1996. Under Section 13 of the Act it is provided that an employee shall be entitled to leave with pay from his/her employment (known as force majeure leave) where for urgent family reasons owing to an injury or illness of a person specified in subsection 2 (which includes a child of that employee) the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.
1. In this case the Plaintiff is a single mother caring for an eight year old child. On the 11th of June 1999 she took leave to look after her sick child. In her evidence before the Tribunal the Plaintiff said that she did not come to work on the 11th of June 1999 as her eight year old child was sick. During the very early morning she noticed that she was sick and she did not know if she had a temperature. When she got up for work she noticed that the child had a rash on her two legs and she decided to stay at home and observe her. The rash was getting worse and she took her to the doctor three miles away. The Plaintiff lived alone eighteen to twenty miles from Mullingar (the place of her employment). The doctor advised her to get calomine lotion and to keep an eye on her daughter. She then had to travel ten miles to a chemist in Ballymahon. She felt it was best to stay with her child that day and that her presence was indispensable.
2. During cross examination the Plaintiff said that between twelve o’clock and six a.m. she had been concerned about her child. She said she would not be in a position herself to diagnose whether her condition might be serious. When she made a claim the management requested a medical certificate. This was not a requirement under the Parental Leave (notice of force majeure leave) Regulations 1998 (S.I. 454 of 1998).
3. For the employer the plant manager told the Tribunal that he did not believe a rash could be termed immediate and indispensable (sic) rather it is normal in bringing up children. When the Plaintiff applied for the leave four days later she knew it was a minor ailment and there was no mention of the fact that she thought of meningitis.
4. In its determination the Tribunal accepted that the Applicant was concerned about her child’s health on the 11th of June 1999 and became aware very early in the morning that her daughter was sick.
5. The Tribunal by a majority (with Mr Paul Clark dissenting) determined that the particulars of this case did not fall within the meaning of the Act as urgent, immediate and indispensable. In his dissenting opinion Mr Clark said that the Company’s refusal to grant paid parental leave in this case was based on the fact that following an examination by her G.P. the child was diagnosed as having a rash which was not serious. In his view this was tantamount to saying that parents must be equipped with the same level of medical knowledge as a medically qualified person before making a decision to stay with a sick child and derive the benefit of the legislation. He said that the Company stated they took no issue with the Plaintiff arising from her absence from work on that day but that their objection was to paying her for the day. Since there was no contention by the Company that the Plaintiff was in any way abusing the situation and since there were limitations placed on employees seeking relief, he felt the conclusions arrived at by his colleagues were somewhat restrictive in the particular circumstances. Accordingly he found that the Plaintiff was entitled to one day of paid force majeure leave for Friday 11 June 1999.
6. While it is not spelt out in the determination of the Tribunal it seems clear that the reason the force majeure leave was refused was that the rash turned out to be not serious. In my opinion the Tribunal should not have approached the matter on that basis. This was judging with hindsight the urgency of the family reasons and the question of whether the employee’s presence with her child was indispensable. The matter should have been looked at from the Plaintiff’s point of view at the time the decision was made not to go to work. Also the Plaintiff could not be assumed to have medical knowledge which she did not possess.
7. The Defendants did not contest the matter and did not appear in Court.
8. In my opinion it was a mistake of law to decide the issue on the basis of the ultimate outcome of the illness in this case.
9. Accordingly the Plaintiff is entitled to one day of paid force majeure leave for Friday 11 June 1999. She is also entitled to her costs.
McGaley v. Liebherr Container Cranes Ltd.
[2001] IEHC 132
Mr. Justice McCracken
“These proceedings come before me by way of appeal pursuant to Section 20 of the Parental Leave Act, 1998 from a determination of the Employment Appeals Tribunal given on 29th March, 2000 and communicated to the Appellant by letter dated 18th April, 2000. Section 20(2) reads:-
“A party to the proceedings of the Tribunal under this part may appeal to the High Court from a determination of the Tribunal on a point of law.”
1. The matter before the Employment Appeals Tribunal was a claim by the Appellant to be entitled to a force majeure leave pursuant to Section 13 of the 1998 Act. This is a new concept introduced into Irish Law pursuant to Council Directive 96/34/EC. The entitlement is set out in Section 13(1) as follows:-
“An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in sub-section (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.”
2. Among the persons specified in sub-section (2) is the spouse of the employee.
3. The events which led up to the Appellant’s claim are not really in dispute. In the early hours of 31st March, 1999 the Appellant’s wife became violently ill and vomitedrepeatedly. She gave evidence to the Tribunal that the vomiting ceased at about 10.00 a.m. or 11.00 a.m. but she was in and out of the bathroom throughout the day until about 3.00 p.m. They had a baby of under twelve months old and she said she could not have minded the baby, who is on a special diet. She said she might have been able to go up and down the stairs but that she had been extremely weak and might have passed out. She was questioned by one of the members of the Tribunal as to why she had not called a doctor, and said that she knew that it was a stomach bug. The Respondents argued before the Tribunal that normal routine illnesses were not covered by the section and that this episode of illness had not required medical attention and did not require the attention of another adult, namely the Appellant.
4. The determination of the Tribunal by a majority decision was :-
“That the Appellant’s claim for leave does not meet the requirements for force majeure leave as set out in Section 13 sub-sections 1 and 2 of the Parental Leave Act, 1998. He has failed to show that his immediate presence was indispensable.”
5. The dissenting member of the Tribunal stated that he believed that the Appellant’s presence was indispensable that morning and went on to find:-
“The Act states that an employee shall be entitled to force majeure leave for urgent family reasons owing to an injury or the illness of the spouse of the employee. It could be said that it would have been irresponsible had he gone to work given the circumstances of his wife’s illness combined with the resulting care requirements of their one year old child in the home at his usual time of departure.”
6. It should be said that a Rights Commissioner had previously reached the same conclusion as the majority decision of the Tribunal.
7. The Appellant relied strongly upon the decision of Carroll J. in Carey -v- Penn Racquet Sports Limited (2000) E.L.R. 27 where the facts were similar to the present case. In that case the Appellant was a single mother whose eight year old child developed a rash overnight. She had a child-minder but she decided that she should stay with the child, and she took her to a doctor in the morning, and then had to travel to a Chemist shop to purchase calamine lotion for the child. The Employment Appeals Tribunal accepted that she was concerned about her child’s health, but held by a majority that the particulars of the case did not fall within the Act as being urgent, immediate and indispensable. Carroll J. allowed the Appeal and said that page 32:-
“Whilst it’s not spelt out in the determination of the Tribunal it seems clear that the reason the force majeure leave was refused was that the rash turned out to be not serious. In my opinion the Tribunal should not have approached the matter on that basis. This was judging with hindsight the urgency of the family reasons and the question of whether the employee’s presence with her child was indispensable. The matter should have been looked at from the Plaintiff’s point of view at the time the decision was made not to go to work. Also the Plaintiff could not be assumed to have medical knowledge which she did not possess.
The Defendants did not contest the matter and did not appear in Court.
In my opinion it was a mistake of law to decide the issue on the basis of the ultimate outcome of the illness in this case”.
8. This is clear authority that the Tribunal must judge whether the facts of a particular case come within Section 13 but that such judgment must be based on the facts as they existed at the time of the circumstances which it is alleged gave rise to the implementation of the Section. The case concluded that it is an error of law to view these circumstances with hindsight and to take into account the ultimate seriousness or otherwise of the illness. I am quite satisfied this is a correct interpretation of the section, and I am also satisfied that it was a question of law as to whether the Tribunal could make a decision on the basis of the ultimate outcome of the illness. The decision does, of course, depend upon the finding by the learned Judge that the reason the force majeure leave was refused was that the rash ultimately turned out not to be serious, and that the Tribunal’s decision was based on hindsight.
9. I must emphasise that the only appeal to the Court under the Act is on a question of law. I am quite satisfied that it is a question of fact as to whether the Appellant’s immediate presence was or was not indispensable, although the Tribunal must determine that fact only by looking at the circumstances that were known at the time the Appellant decided to stay at home. It is not open to this Court to look at those circumstances and decide that this Court would have reached a different decision, provided the Tribunal did not err in law in the manner determined in the Carey case. I leave open the question of whether it could be argued under the section that the decision reached was one which no reasonable Tribunal could have reached on the facts, as that argument was not raised before me, nor indeed could it have been in the present case.
10. I do not think I can take the same inference from the facts of this case or the decision of the Tribunal that Carroll J. took in the Carey case. The evidence in this case is that the illness was not considered by the Appellant or his wife to be a serious illness or indeed one which required the attention of a doctor. Thus the seriousness or otherwise of the illness was not determined by the Tribunal with hindsight, but had been determined by the parties themselves at the time of the illness. Undoubtedly the Appellant’s wife suffered a veryunpleasant, and probably debilitating, experience, and undoubtedly it was of great assistance to her to have her husband present. However, the question of whether the Appellant’s presence was indispensable is one which must depend on the facts of the individual case. The fact that his wife suffered from what has been called a stomach bug could in some circumstances render his presence indispensable, while in other circumstances it would not be indispensable. The Tribunal is the sole arbiter of fact, and heard evidence from witnesses who were cross-examined, and on that evidence it made a determination that the Appellant’s presence was not indispensable. In my view that is a pure question of fact decided on the evidence, and there is nothing to suggest or from which I could draw the inference that the Tribunal applied wrong principles in making their decision. Accordingly, I do not feel there is a question of law involved which would warrant an appeal under Section 20 of the Act and I must refuse the Order sought.
Coleman
[2008] EUECJ C-303/06
“The first part of Question 1, and Questions 2 and 3
By these questions, which should be examined together, the referring tribunal asks, in essence, whether Directive 2000/78, and, in particular, Articles 1 and 2(1) and (2)(a), must be interpreted as prohibiting direct discrimination on grounds of disability only in respect of an employee who is himself disabled, or whether the principle of equal treatment and the prohibition of direct discrimination apply equally to an employee who is not himself disabled but who, as in the present case, is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by virtue of the child’s condition.
Article 1 of Directive 2000/78 identifies its purpose as being to lay down, as regards employment and occupation, a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation.
Article 2(1) of Directive 2000/78 defines the principle of equal treatment as meaning that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1, including, therefore, disability.
According to Article 2(2)(a), direct discrimination is to be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds, inter alia, of disability.
Article 3(1)(c) of Directive 2000/78 provides that the directive is to apply, within the limits of the areas of competence conferred on the Community, to all persons, as regards both the public and private sectors, including public bodies, in relation to employment and working conditions, including dismissals and pay.
Consequently, it does not follow from those provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the directive. On the contrary, the purpose of the directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.
It is true that Directive 2000/78 includes a number of provisions which, as is apparent from their very wording, apply only to disabled people. Thus, Article 5 provides that, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation is to be provided. This means that employers must take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.
Article 7(2) of Directive 2000/78 also provides that, with regard to disabled persons, the principle of equal treatment is to be without prejudice either to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting the integration of such persons into the working environment.
The United Kingdom, Greek, Italian and Netherlands Governments contend, in the light of the provisions referred to in the two preceding paragraphs and also of recitals 16, 17 and 27 in the preamble to Directive 2000/78, that the prohibition of direct discrimination laid down by the directive cannot be interpreted as covering a situation such as that of the claimant in the main proceedings, since the claimant herself is not disabled. Only persons who, in a comparable situation to that of others, are treated less favourably or are placed in a disadvantageous situation because of characteristics which are particular to them can rely on that directive.
Nevertheless, it must be noted in that regard that the provisions referred to in paragraphs 39 and 40 of this judgment relate specifically to disabled persons either because they are provisions concerning positive discrimination measures in favour of disabled persons themselves or because they are specific measures which would be rendered meaningless or could prove to be disproportionate if they were not limited to disabled persons only. Thus, as recitals 16 and 20 in the preamble to Directive 2000/78 indicate, the measures in question are intended to accommodate the needs of disabled people at the workplace and to adapt the workplace to their disability. Such measures are therefore designed specifically to facilitate and promote the integration of disabled people into the working environment and, for that reason, can only relate to disabled people and to the obligations incumbent on their employers and, where appropriate, on the Member States with regard to disabled people.
Therefore, the fact that Directive 2000/78 includes provisions designed to accommodate specifically the needs of disabled people does not lead to the conclusion that the principle of equal treatment enshrined in that directive must be interpreted strictly, that is, as prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people. Furthermore, recital 6 in the preamble to the directive, concerning the Community Charter of the Fundamental Social Rights of Workers, refers both to the general combating of every form of discrimination and to the need to take appropriate action for the social and economic integration of disabled people.
The United Kingdom, Italian and Netherlands Governments also contend that it follows from the judgment in Case C-13/05 Chacón Navas [2006] ECR I-6467 that the scope ratione personae of Directive 2000/78 must be interpreted strictly. According to the Italian Government, in Chacón Navas, the Court opted for a strict interpretation of the concept of disability and its implications in an employment relationship.
The Court defined the concept of ‘disability’ in its judgment in Chacón Navas and, in paragraphs 51 and 52 of that judgment, it found that the prohibition, as regards dismissal, of discrimination on grounds of disability contained in Articles 2(1) and 3(1)(c) of Directive 2000/78 precludes dismissal on grounds of disability which, in the light of the obligation to provide reasonable accommodation for people with disabilities, is not justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his post. However, it does not follow from this interpretation that the principle of equal treatment defined in Article 2(1) of that directive and the prohibition of direct discrimination laid down by Article 2(2)(a) cannot apply to a situation such as that in the present case, where the less favourable treatment which an employee claims to have suffered is on grounds of the disability of his child, for whom he is the primary provider of the care required by virtue of the child’s condition.
Although the Court explained in paragraph 56 of the judgment in Chacón Navas that, in view of the wording of Article 13 EC, the scope of Directive 2000/78 cannot be extended beyond the discrimination based on the grounds listed exhaustively in Article 1 of the directive, with the result that a person who has been dismissed by his employer solely on account of sickness cannot fall within the scope of the general framework established by Directive 2000/78, it nevertheless did not hold that the principle of equal treatment and the scope ratione personae of that directive must be interpreted strictly with regard to those grounds.
So far as the objectives of Directive 2000/78 are concerned, as is apparent from paragraphs 34 and 38 of the present judgment, the directive seeks to lay down, as regards employment and occupation, a general framework for combating discrimination on one of the grounds referred to in Article 1 – including, in particular, disability – with a view to putting into effect in the Member States the principle of equal treatment. It follows from recital 37 in the preamble to the directive that it also has the objective of creating within the Community a level playing field as regards equality in employment and occupation.
As Ms Coleman, the Lithuanian and Swedish Governments and the Commission maintain, those objectives, and the effectiveness of Directive 2000/78, would be undermined if an employee in the claimant’s situation cannot rely on the prohibition of direct discrimination laid down by Article 2(2)(a) of that directive where it has been established that he has been treated less favourably than another employee is, has been or would be treated in a comparable situation, on the grounds of his child’s disability, and this is the case even though that employee is not himself disabled.
In that regard, it follows from recital 11 in the preamble to the directive that the Community legislature also took the view that discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the Treaty, in particular, as regards employment.
Although, in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered. As is apparent from paragraph 38 of this judgment, Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in Article 1.
Where it is established that an employee in a situation such as that in the present case suffers direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.
As to the burden of proof which applies in a situation such as that in the present case, it should be observed that, under Article 10(1) of Directive 2000/78, Member States are required to take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it is for the respondent to prove that there has been no breach of that principle. According to Article 10(2), Article 10(1) does not prevent Member States from introducing rules on the burden of proof which are more favourable to plaintiffs.
In the case before the referring tribunal, it is therefore for Ms Coleman, in accordance with Article 10(1) of Directive 2000/78, to establish, before that tribunal, facts from which it may be presumed that there has been direct discrimination on grounds of disability contrary to the directive.
In accordance with Article 10(1) of Directive 2000/78 and recital 31 in the preamble thereto, the rules on the burden of proof must be adapted when there is a prima facie case of discrimination. In the event that Ms Coleman establishes facts from which it may be presumed that there has been direct discrimination, the effective application of the principle of equal treatment then requires that the burden of proof should fall on the respondents, who must prove that there has been no breach of that principle.
In that context, the respondents could contest the existence of such a breach by establishing by any legally permissible means, in particular, that the employee’s treatment was justified by objective factors unrelated to any discrimination on grounds of disability and to any association which that employee has with a disabled person.
In the light of the foregoing considerations, the answer to the first part of Question 1 and to Questions 2 and 3 must be that Directive 2000/78, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).
Sánchez-Camacho v Instituto Nacional de la Seguridad Social
Case C-537/07
”1. Clause 2(6) of the framework agreement on parental leave, annexed to Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, can be relied on by individuals before a national court. That clause lays down an obligation to maintain rights acquired or in the process of being acquired by the worker on the date on which parental leave starts as they stand until the end of parental leave, including any changes arising in the meantime. The clause, which is intended to avoid any detriment to the rights of employees who have opted to take parental leave, thus requires, generally and in unequivocal terms, both national authorities and employers to recognise rights already acquired and those being acquired at the start of such leave and to guarantee that, at the end of the leave, employees will be able to continue to acquire rights as if that leave had not taken place. Accordingly, the content of that clause is thus sufficiently precise for that provision to be relied on by an individual and applied by courts.
(see paras 35-37, operative part 1)
2. Clause 2(6) and (8) of the framework agreement on parental leave, annexed to Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, does not preclude the taking into account, in the calculation of an employee’s permanent invalidity pension, of the fact that he has taken a period of part-time parental leave during which he made contributions and acquired pension entitlements in proportion to the salary received.
On the one hand, Clause 2(6) of that framework agreement does not govern the entitlements and obligations derived from an employment relationship during parental leave, but refers to national legislation and to collective agreements in order to determine the regime governing the contract or employment relationship, including the extent to which the employee, during that leave, continues to acquire entitlements vis-à-vis his employer and under occupational social security schemes. On the other hand, Clause 2(8) of that framework agreement refers to maintenance of social security benefits during the period of an employee’s parental leave, without however imposing a specific obligation on Member States in that regard. Consequently, those provisions do not require the Member States to give workers a guarantee that, during the period of their part-time parental leave, they will continue to acquire entitlements to future social security benefits to the same extent as if they had continued to work on a full-time basis.
(see paras 40, 42-44, operative part 2)
3. Clause 2(8) of the framework agreement on parental leave, annexed to Directive 96/34 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, does not impose obligations on the Member States, apart from that of examining and determining social security questions related to that framework agreement in accordance with national legislation. In particular, it does not require them to ensure that during parental leave employees continue to receive social security benefits. Clause 2(8) thereof cannot be relied on by individuals before a national court against public authorities.
(see para. 51, operative part 3)
4. The principle of equal treatment for men and women and, in particular, the principle of equal treatment for men and women in matters of social security, within the meaning of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, does not preclude an employee, during part-time parental leave, from acquiring entitlements to a permanent invalidity pension according to the time worked and the salary received and not as if he had worked on a full-time basis.
The purpose of that directive is only the progressive implementation of the principle of equal treatment for men and women in matters of social security and, pursuant to Article 7(1)(b) thereof, Member States may exclude from its scope the acquisition of entitlements to social security benefits under statutory schemes following periods of interruption of employment due to the bringing up of children. It follows that the acquisition of entitlement to social security benefits following periods of interruption of employment due to the bringing up of children is still a matter for the Member States to regulate.
(see paras 60-61, 63, operative part 4)
…….
43 It follows that Clause 2(6) and (8) of that framework agreement does not require the Member States to give workers a guarantee that, during the period of their part-time parental leave, they will continue to acquire entitlements to future social security benefits to the same extent as if they had continued to work on a full-time basis.
44 Consequently, the answer to the first part of the first question, the first part of the second question, the third question and the second part of the fourth question is that Clause 2(6) and (8) of the framework agreement on parental leave does not preclude the taking into account, in the calculation of an employee’s permanent invalidity pension, of the fact that he has taken a period of part-time parental leave during which he made contributions and acquired pension entitlements in proportion to the salary received.
The first part of the fourth question and the second part of the second question
45 By the first part of the fourth question and the second part of the second question, which it is appropriate to examine together, the national court asks, essentially, whether Clause 2(8) of the framework agreement on parental leave is to be interpreted as meaning that it requires Member States to provide for employees to continue to receive social security benefits during parental leave, and whether that clause can be relied on by individuals before a national court against public authorities.
46 In that regard, it must be pointed out, firstly, that Clause 2(3) of the framework agreement on parental leave refers to the law and/or to collective agreements in the Member States for definition of the conditions of access and detailed rules for applying parental leave. Nevertheless, those conditions and rules must be defined in compliance with the minimum requirements laid down by the framework agreement on parental leave.
47 Secondly, although Clause 2(8) of the framework agreement on parental leave also refers to the Member States’ legislation with regard to consideration and determination of all matters relating to social security questions in relation to that agreement, it merely recommends that they take into account the importance of the continuity of the entitlements to social security cover under the different schemes, in particular health care, during parental leave.
48 In addition, both the wording of Clause 2(8) of the framework agreement on parental leave and the fact that that framework agreement was concluded by management and labour represented by joint trade bodies shows that it could not impose obligations on the national social security organisations, which were not party to that agreement.
49 Furthermore, in accordance with point 11 of the general considerations of the framework agreement on parental leave, Member States should, where appropriate under national conditions and taking into account the budgetary situation, consider the maintenance of entitlements to relevant social security benefits as they stand during the minimum period of parental leave.
50 It follows from the foregoing that Clause 2(8) of the framework agreement on parental leave does not impose any obligation on the Member States to ensure, during parental leave, that employees continue to receive social security benefits and does not establish entitlements for employees. Accordingly, Clause 2(8) of the framework agreement cannot be relied on by individuals before a national court against public authorities and there is no need to examine whether it contains provisions which are unconditional and sufficiently precise.
51 Consequently, the answer to the first part of the fourth question and to the second part of the second question must be that Clause 2(8) of the framework agreement on parental leave does not impose obligations on the Member States, apart from that of considering and determining social security questions related to that framework agreement in accordance with national legislation. In particular, it does not require them to ensure that during parental leave employees continue to receive social security benefits. Clause 2(8) thereof cannot be relied on by individuals before a national court against public authorities.
61 It follows that the acquisition of entitlement to social security benefits following periods of interruption of employment due to the bringing up of children is still a matter for the Member States to regulate (see Case C-31/90 Johnson [1991] ECR I-3723, paragraph 25).
62 It is apparent from case-law that Directive 79/7 in no way obliges the Member States to grant advantages in respect of social security to persons who have brought up children or to provide benefit entitlements where employment has been interrupted in order to bring up children (see, by analogy, Case C-297/93 Grau-Hupka [1994] ECR I-5535, paragraph 27).
63 Consequently, the answer to the fifth question is that the principle of equal treatment for men and women and, in particular, the principle of equal treatment for men and women in matters of social security, within the meaning of Directive 79/7, does not preclude an employee, during part-time parental leave, from acquiring entitlements to a permanent invalidity pension according to the time worked and the salary received and not as if he had worked on a full-time basis.
On those grounds, the Court (Third Chamber) hereby rules:
1. Clause 2(6) of the framework agreement on parental leave concluded on 14 December 1995, annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC can be relied on by individuals before a national court.
2. Clause 2(6) and (8) of the framework agreement on parental leave does not preclude the taking into account, in the calculation of an employee’s permanent invalidity pension, of the fact that he has taken a period of part-time parental leave during which he made contributions and acquired pension entitlements in proportion to the salary received.
3. Clause 2(8) of the framework agreement on parental leave does not impose obligations on the Member States, apart from that of examining and determining social security questions related to that framework agreement in accordance with national legislation. In particular, it does not require them to ensure that during parental leave employees continue to receive social security benefits. Clause 2(8) thereof cannot be relied on by individuals before a national court against public authorities.
4. The principle of equal treatment for men and women and, in particular, the principle of equal treatment for men and women in matters of social security, within the meaning of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, does not preclude an employee, during part-time parental leave, from acquiring entitlements to a permanent invalidity pension according to the time worked and the salary received and not as if he had worked on a full-time basis.
Chatzi
[2010] EUECJ C-149/10
“31 By its first question, the referring court asks, in essence, whether clause 2.1 of the Framework Agreement can be interpreted as meaning that it confers an individual right to parental leave on the child and that, consequently, the refusal of a second period of parental leave in the event of the birth of twins infringes the rights which twins derive from the European Union legal order.
32 As has been observed by all the interested persons which have submitted observations to the Court, both the wording and the purpose of the Framework Agreement lead to this question being answered in the negative.
33 Clause 2.1 of the Framework Agreement expressly provides that an individual right to parental leave is granted ‘to men and women workers’. Similarly, as regards the scope of the Framework Agreement, clause 1.2 states that it applies ‘to all workers, men and women, who have an employment contract or employment relationship’.
34 It is clear from that wording that the persons granted the right to parental leave are the parents, in their capacity as workers, and they alone.
35 This literal interpretation is confirmed by the purpose of parental leave.
36 In accordance with clause 1.1 of the Framework Agreement, parental leave is designed ‘to facilitate the reconciliation of parental and professional responsibilities for working parents’, an objective set, as paragraph 4 of the general considerations in the Framework Agreement recalls, by point 16 of the Community Charter of the Fundamental Social Rights of Workers, adopted at the European Council meeting held in Strasbourg on 9 December 1989.
37 It was with the same objective that the right to parental leave was included in Article 33(2) of the Charter of Fundamental Rights among the fundamental social rights grouped together in Title IV under the heading ‘Solidarity’.
38 Article 24 of the Charter of Fundamental Rights, which the referring court mentions, cannot alter the foregoing analysis.
39 That article, which is in Title III of the Charter of Fundamental Rights, headed ‘Equality’, states that children are to have the right to such protection and care as is necessary for their well-being. However, this right to protection and care does not mean that children have to be acknowledged as having an individual right to see their parents obtain parental leave. It is sufficient for such a right to be conferred on the parents themselves. It is they who have both the right and the duty to bring up their children and who, for that purpose, can decide on how best to perform their parental responsibilities, in choosing whether or not to have recourse to parental leave.
40 The answer to the first question therefore is that clause 2.1 of the Framework Agreement cannot be interpreted as conferring an individual right to parental leave on the child.
Question 2
41 By its second question, the referring court asks, in essence, whether clause 2.1 of the Framework Agreement can be interpreted as meaning that the birth of twins confers entitlement to a number of periods of parental leave equal to the number of children born or whether it must be interpreted as meaning that their birth confers entitlement, like the birth of a single child, to just a single period of parental leave.
42 In accordance with settled case-law, it is necessary, in interpreting a provision of Community law, to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C-306/05 SGAE [2006] ECR I-11519, paragraph 34, and Joined Cases C-402/07 and C-432/07 Sturgeon andOthers [2009] ECR I-0000, paragraph 41).
43 In addition, under a general principle of interpretation, a Community measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole (see, in particular, Case C-361/06 Feinchemie Schwebda and Bayer CropScience [2008] ECR I-3865, paragraphs 49 and 50, and Sturgeon and Others, paragraphs 47 and 48), including with the principle of equal treatment.
44 This case-law may be applied to agreements, such as the Framework Agreement, that have been implemented by a Council directive, of which they are thus an integral component (see paragraph 25 of the present judgment).
Wording of clause 2.1 of the Framework Agreement
45 Under clause 2.1 of the Framework Agreement, men and women workers have an ‘individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months’. Article 33(2) of the Charter of Fundamental Rights is couched in similar terms, since it provides that ‘everyone shall have … the right to … parental leave following the birth or adoption of a child’.
46 The Cypriot and United Kingdom Governments observe that the use of the singular (‘the birth …. of a child’, ‘to enable them to take care of that child’) suggests that a worker is entitled to a separate period of parental leave for each child.
47 According to the Cypriot Government, confirmation for the interpretation that the decisive criterion conferring entitlement to parental leave is the child and not the birth is found in Case C-519/03 Commission v Luxembourg [2005] ECR I-3067, paragraph 47, in which the Court held that the wording that parental leave is conferred ‘on the grounds of the birth’ of a child reflects only the fact that the grant of parental leave is subject to the condition that a child has been born.
48 The literal interpretation thereby proposed is not free from doubt.
49 It is possible that the use of the singular in clause 2.1 of the Framework Agreement is not numerical but generic, and that the singular does not establish a correlation between the number of children and the number of periods of parental leave but designates the children as a whole, as a category of persons capable of conferring entitlement to parental leave.
50 So far as concerns the purport of Commission v Luxembourg, it is clear on reading paragraph 47 of that judgment that, in interpreting clause 2.1 of the Framework Agreement as meaning that the grant of parental leave is subject not to birth but to the condition that a child has been born, the Court sought to indicate that the right to parental leave is not connected with the date of birth and that it is not necessary for the child to have been born after the entry into force of Directive 96/34 in the Member State concerned. The Court thus ruled on the temporal application of Directive 96/34 and not on whether, in the event of a multiple birth, a number of periods of parental leave equal to the number of children born must be granted.
51 Accordingly, so far as concerns the answer to be given to the present question, the wording of clause 2.1 of the Framework Agreement is ambiguous and does not by itself provide an answer to the question asked by the referring court.
52 The purpose of the rules of which that provision is part must therefore be taken into consideration.
Context and objectives of Directive 96/34
53 It is apparent from clause 2.1 of the Framework Agreement that the purpose of parental leave is to enable parents to take care of their child.
56 As is apparent from the first recital in the preamble to the Framework Agreement and from paragraph 5 of its general considerations, the Framework Agreement constitutes an undertaking by the two sides of industry to introduce, through minimum requirements, measures to promote equal opportunities and treatment between men and women, by offering them an opportunity to reconcile their work responsibilities with family obligations (Case C-116/08 Meerts [2009] ECR I-0000, paragraph 35).
57 To this end, the Framework Agreement enables new parents to take a break from work to devote themselves to their family responsibilities, whilst giving them the assurance, set out in clause 2.5 of the Framework Agreement, that they will be entitled to return to the same job at the end of the leave. During a period freely set by each Member State subject to a minimum duration of three months, and in accordance with detailed rules left to national legislatures to determine, the new parents are thus able to provide their child with the assistance that his or her age requires and to make provision for measures organising family life with a view to their return to work.
58 As regards the question whether, in the light of this purpose, the parents of twins must be able to claim a number of periods of parental leave equal to the number of children born, it must be stated, as the Greek, Czech, German, Estonian and Polish Governments have observed, that the increase in burdens that parents of twins must face up to is quantitative in nature, in that they must simultaneously meet the needs of two children, but that this additional effort does not extend over a greater period since twins, in principle, go through the same stages of development at the same time.
59 It is therefore clear that doubling the duration of parental leave does not necessarily constitute the only appropriate measure to which the Member States may have recourse to facilitate the coordination of work and family life of the parents of twins, and that account should be taken of the whole of the system of which the measures intended to provide a response to the constraints encountered by such parents form part.
60 This assessment is confirmed by the consideration that, given that the requirements of the Framework Agreement are minima and, as a result, the Member States have a wide discretion as regards implementation of parental leave, national transposing measures vary considerably from one Member State to another.
61 Accordingly, in the light of the context in which it occurs and of the purpose pursued by the Framework Agreement, clause 2.1 of the Framework Agreement does not require that entitlement to a number of periods of parental leave equal to the number of children born be automatically recognised in the event of the birth of twins.
62 It nevertheless remains necessary to examine the implications that the principle of equal treatment may have for the situation of parents of twins.
Principle of equal treatment
63 Observance of the principle of equal treatment, which is one of the general principles of European Union law and whose fundamental nature is affirmed in Article 20 of the Charter of Fundamental Rights, is all the more important in implementing the right to parental leave because this social right is itself recognised as fundamental by Article 33(2) of the Charter of Fundamental Rights.
64 This principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C-164/07 Wood [2008] ECR I-4143, paragraph 13, and Sturgeon and Others, paragraph 48).
65 The Commission submits that parents of twins are in a situation comparable to that of parents of children separated by a small difference in age inasmuch as they all have in common that they bring up their children simultaneously; the former must therefore, like the latter, be granted parental leave independently for each child.
66 The criterion for comparison adopted by the Commission underscores the difficulty that exists in defining the group of persons with whom the parents of twins may be compared. That criterion is based on a factor that is difficult to quantify, namely the factor of a ‘small difference in age’.
67 Furthermore, whilst it cannot be denied that the task of bringing up twins entails greater effort and therefore is not comparable to care of a single child, it also cannot be ignored that the fact that twins grow up and develop in parallel entails synergies and that, consequently, the task of bringing them up is not necessarily comparable to the task that bringing up two children of different ages involves.
68 Accordingly, it must be found that the parents of twins are in a special situation which must be taken into account in the first instance by the national legislature when it adopts the measures transposing Directive 96/34.
69 In this context, it is to be pointed out once again that, as clauses 1.1 and 2.1 of the Framework Agreement state, the Framework Agreement lays down only minimum requirements. Besides the duration of parental leave, which they are free to set subject only to a minimum threshold of three months, the Member States may in their discretion determine the conditions of access and detailed rules for such leave. Clause 2.3 of the Framework Agreement refers in this regard to the law and/or collective agreements in the Member States, this reference being justified, according to paragraph 9 of the general considerations in the Framework Agreement, by the concern to take account of the situation in each Member State.
70 The Member States can thus define, subject to compliance with the minimum three-month threshold imposed by the Framework Agreement in respect of the duration of parental leave, the detailed temporal rules under which parental leave may be taken. This discretion means in particular that, when Member States decide to set a period of parental leave that is longer than the minimum period prescribed by the Framework Agreement, they can lay down adjustments to the rules for the case of successive births of children.
71 It follows that the national legislature has wide freedom of action when establishing the parental leave regime that is applicable to parents of twins and enables them to receive treatment that takes due account of their particular needs.
72 In this regard, it should be stated that, generally, a duration appreciably longer than the minimum duration prescribed by the Framework Agreement and a certain degree of flexibility granted to the parents to take the leave on the basis of the age of the child are such as to make it easier to deal with the increased burdens connected with bringing up twins. Likewise, detailed implementing rules which, in accordance with paragraph 6 of the general considerations in the Framework Agreement, make substantial provision for flexible ways of organising work are such as to facilitate reconciliation of the requirements of work and the particular constraints that bringing up twins involves.
73 However, it is also possible to conceive of and adopt other measures that are appropriate for the purpose of meeting the particular needs of the parents of twins, such as material assistance, in the form, for example, of a right of access to childcare centres, or financial aid, in the form, inter alia, of specific benefits allowing the method of care to be freely chosen.
74 It is for the national court, which has sole jurisdiction to assess the facts of the dispute before it, to determine whether the body of national rules offers sufficient possibilities to meet, in a specific case, the particular needs of the parents of twins in their work and family life.
75 In view of the foregoing considerations, the answer to the second question is that clause 2.1 of the Framework Agreement is not to be interpreted as requiring the birth of twins to confer entitlement to a number of periods of parental leave equal to the number of children born. However, read in the light of the principle of equal treatment, this clause obliges the national legislature to establish a parental leave regime which, according to the situation obtaining in the Member State concerned, ensures that the parents of twins receive treatment that takes due account of their particular needs. It is incumbent upon national courts to determine whether the national rules meet that requirement and, if necessary, to interpret those national rules, so far as possible, in conformity with European Union law.