EMPLOYMENT LEAVE

Pedro Manuel Roca Álvarez v Sesa Start España ETT SA

The European equal treatment directive states that men and women must not be discriminated against at work on the ground of their sex. The European Court of Justice (ECJ) has said in Pedro Manuel Roca Álvarez v Sesa Start España ETT SA that it was sex discrimination to grant (what was originally breastfeeding) leave to employed mothers, but not to employed fathers unless the child’s mother was also an employee.

Basic facts

Spanish law states that women employees are entitled to time off during the working day to breastfeed a child up to the age of nine months. They are allowed to replace this right by cutting half an hour off their working day or accumulate it and roll it into whole days.

Although originally introduced to facilitate breastfeeding, the time off was subsequently made available to both fathers and mothers to spend time with their child, but with the proviso that both had to be employed.

In March 2005, Mr Alvarez asked his employer, Sesa Start Espana, for the leave but was told he was not eligible as his wife was self-employed.

He unsuccessfully challenged the decision in the Spanish courts which said that fathers could only claim the leave if the mother had a right to breastfeeding leave which was only available to employees. However, it asked the ECJ if this was contrary to the equal treatment directive.

Equal treatment directive

Article 2(1) states that the principle of equal treatment means that there is to be no discrimination whatsoever on grounds of sex, either directly or indirectly, by reference in particular to marital or family status.

Article 5(1) of the directive provides that the application of that principle, with regard to working conditions, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.

ECJ decision

The ECJ said that as the breastfeeding leave allowed women to reduce their working day, it therefore affected “working conditions” within the meaning of article 5.

The Court noted that although fathers might need to reduce their daily working time to look after their child, they could not claim the leave even if they were employed. So being an employed parent was not enough for them to claim entitlement, whereas it was for women.

As such the Spanish legislation created a difference in treatment on the ground of sex between mothers and fathers who are both employed.

The Court said the discrimination could not be justified on the basis that it had been introduced to protect women because amendments to the legislation meant that it had become “detached from that purpose” and was now accorded to workers in their capacity as parents.

Nor could it be justified on the ground that it promoted equal opportunities between men and women (for instance by helping women to keep their jobs following the birth of a child). Instead, the court said it was more “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”.

In this case, the effect of denying the leave to Mr Roca Alvarez would mean that his wife would have to limit her self-employed activity and “bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden.”