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30 Sep 2010

Eversheds comment: Fathers' rights at work given boost in CJEU ruling

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Fathers' rights at work have been given a boost by a ruling from the Court of Justice of the European Union (CJEU). The Court's reasoning in the case of Roca Álvarez v Sesa Start España ETT SA* suggests fathers who take advantage of new rights to extended paternity leave from April next year could qualify for the same rights and benefits as women who take additional maternity leave.

The Additional Paternity Leave Regulations 2010 give fathers of babies due on or after 3 April 2011 the right to take up to 6 months' paternity leave (in addition to their existing two week entitlement). As with maternity leave, the regulations only entitle a father taking paternity leave to a flat rate of pay (currently £124.88 a week or 90% of normal weekly earnings if lower). However, some employers offer enhanced benefits to women on maternity leave, paying more than the law requires. Fathers are likely to claim that this ruling from the CJEU gives them the right to the same enhanced benefits on paternity leave as their employer would pay to a woman during the second six months of her maternity leave.

Audrey Williams, partner and head of discrimination law at International law firm Eversheds comments:

"When the last government introduced the additional paternity leave regulations it seemed to assume that, in practice, few men would take advantage of the new rights, particularly for financial reasons. However, with this latest case from Europe, some parents will be more inclined to organise their leave arrangements to take advantage of benefits provided by their respective employers. If the father's employer affords generous maternity pay, whilst the mother's employer sticks to the bare minimum, the parents will want to weigh that up when deciding which of them takes leave.

"Some employers have already decided that when the law changes next year they will offer the same benefits to men on paternity leave as they do to women. Others may now be forced to do the same. The ruling will probably only affect benefits that would be paid during the second six months of a woman's maternity leave, however, which will limit its impact."

*Footnote:

Roca Álvarez v Sesa Start España ETT SA

The case concerned a Spanish scheme allowing parents to take time off work to look after a child which was applied differently to men and women. Whereas all employed mothers were eligible for the leave, employed fathers were not entitled to the same leave unless the child's mother was also an employee.The CJEU ruled that this disparity in treatment constituted sex discrimination. Although women can be afforded special treatment to protect their biological condition following pregnancy or to protect 'the special relationship between a mother and her child', the CJEU noted that the leave in question was not directed at either of those aims. This was evidenced by the fact that the leave could be taken by the mother or the father without distinction. The CJEU commented that making it harder for fathers to qualify for the leave than mothers 'is liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties...'

For more information contact

Lucy Sulkin

Eversheds LLP
t: +44 (0) 207 919 0683
m: +44 (0)777 026 6290
e: LucySulkin@eversheds.com

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