Presently, legislation on the length of maternity leave and how it is paid varies from one Member State to another. The 1992 Pregnant Workers Directive provides for a minimum 14 weeks of maternity leave throughout the EU. Whereas France, the Netherlands and Spain offer 16 weeks the UK offers 52 weeks. Moreover, not all EU Member States offer fully paid maternity leave for the total available period.
Last October, the Commission presented a proposal for a Directive amending Council Directive 92/85/EEC 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. The Commission proposed to extend the minimum period of leave from 14 to 18 weeks.
The UK’s law provides that all employed women are entitled to one year’s maternity leave though they may return to work earlier if they wish.
On 9 March, the Employment Council held a policy debate on the Commission's proposal. The Commission’s plan is facing strong opposition from several Member States. The majority of the Member States supported the extension of maternity leave entitlement from 14 to 18 weeks. Nevertheless, some Member States have stressed that fathers also played an important role in family life therefore they are not willing to extend the leave reserved solely to the mother. Particularly, the Nordic Member States believe that the European Commission’s proposal would increase gender inequality. Consequently, they are demanding the inclusion of ‘paternal leave’ in order to allow fathers access to paid parental leave following the birth of a baby.
The Commission has also proposed that women shall be paid 100% of their salary but with a possibility for Member States to set a ceiling at the level of sick pay. Hence, Member States can fix a lower amount which must not be less than the national rate paid to those on sickness leave. The Commission has stressed that according to the ECJ’s case law the EC may adopt legislation based on Article 137 to regulate questions of pay.
The Commission’s proposal that new mothers would be entitled to full paid leave for the 18 weeks of maternity leave would have considerable impact in the UK. In the UK, new mothers received 90 per cent of their average earnings for the first 6 weeks, then up to £117.18 for the remaining 33 weeks. The Government will extend from 2010 the statutory maternity pay (SMP) to 52 weeks. The Minister for Employment Relations at the Department for Business, Enterprise and Regulatory Reform, Pat McFadden, has said to the European Scrutiny Committee “(…) The potential of full pay is a significant spending risk and is at variance with the UK’s general scheme of benefit payments. (…) While a mandatory move to full pay during maternity leave is not the Commission’s intention and pay may be subject to a ceiling, the UK will be seeking further legal clarity in this area.”
The Commission proposal would entail an increase in maternity pay which is particularly problematic for those Member States, such as the UK, which have longer leaves.
Under the Commission’s proposal a mother would be obliged to take from the 18 weeks a compulsory maternity leave of at least six weeks after childbirth. The UK provides for a compulsory leave of two weeks after birth. Under the Commission’s proposal women would be prevented to go back to work for six weeks after having their babies. Moreover, Member States would be required to ensure that women can choose when to take the noncompulsory part of maternity leave. Therefore, the remaining part could be taken before or after labour.
In the UK, women may take their maternity leave any time from the 11 week before the due date. The UK Government is concerned with the Commission proposal since “(…) in providing complete flexibility to a woman in when to take her noncompulsory maternity leave could mean that in the UK a mother could take the majority of her maternity leave prior to confinement, by choosing to start their maternity leave early in their pregnancy” which “contradicts the aim of the proposal to provide additional health protections following the birth of the child.”
Several Member States want to keep the right to decide within their national legislation which part of maternity leave must be taken before and after childbirth. The majority of Member States considered that certain limits should be set for a range of reasons such as the protection of the health of the pregnant worker and of her child, the predictability of the planning of maternity leave as well as to avoid situations where the worker takes a substantial proportion of her maternity leave before childbirth.
As Philip Bushill-Matthews MEP, Conservative Spokesman on Employment and Social Affairs, rightly said: "The EU should not be dictating to British mothers and fathers how much leave they must take."
The Commission’s proposal also aims to protect women against dismissal and provides for a right to return to the same job or an equivalent one after maternity leave. Member States would also be required to put forward measures in order to ensure the right of women to ask the employer during maternity leave, or on return, for changes of working hours. The employer is obliged to consider the request but has no obligation to accept it.
The UK has already introduced a right for employees to request flexible working. According to Pat McFadden “The UK is concerned that the draft does not allow requests to be refused on grounds of business needs alone.” Moreover, there are also concerns that “enshrining a right to request flexible working within the pregnant workers directive will reinforce the view that flexible working is a women’s issue.”
Some Member States are also concerned with the possible negative consequences of a further extension of maternity leave, as regards the situation of women on the labour market. According to BusinessEurope, the employment rate of women would not be improved by extending the terms of maternity leave. In fact, it argued that more regulation might discourage employers from hiring women: “Extending maternity leave rights at EU level in a way that is overly restrictive for companies would actually be of detriment to women’s employment opportunities.”
Several Member States are also concerned with costs resulting from the proposed amendments. According to Pat McFadden the Commission’s proposal would further increase employers’ costs as well as the UK’s social security expenditure.
According to the Government’s draft Impact Assessment of the Directive, the annual cost of the proposals would be around £3.7 million a year for the Exchequer, around £843,000 for small businesses, around £1.7 million a year for large businesses and £6.9 million a year to individuals.
The Member States could not reach a general approach since they have different positions. There are a wide variety of national practices as regards maternity leave. Therefore it should be the Member States and not Brussels to decide on maternity leave issues. There is no need for further EU legislation. It should be also taken into account the costs associated with changing the legislation.
The UK has already adopted legislation which gives pregnant workers entitlements which go beyond most of the minimum requirements of the 1992 Directive and the proposed amending Directive.
The proposal is going through the co-decision procedure. It remains to be seen what will come out from the negotiations with the European Parliament.
Last April, the European Parliament Women's Rights Committee voted to extend the period of paid maternity leave to 20 weeks whereas the European Commission has proposed 18 weeks. The Women's Rights Committee has also voted to introduce compulsory payment of 100% of salary for six weeks after birth, for the rest of the leave 100% of salary should be paid or at least 85% of it. The Committee has also included in the proposal paternity leave with a compulsory minimum two weeks after the birth.
The European Parliament is divided over the issue but the EPP and ALDE groups were able to block such report at the last plenary session before the European elections. At the request of Astrid Lulling, on behalf of the EPP-ED group, the European Parliament has decided to postpone the vote and refer back to committee the report by Edite Estrela 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.
The Government wants to ensure that the proposal would be compatible with the UK existing provisions. However, the UK would not be able to veto the draft directive as QMV is required at the Council. It remains to be seen what will come out from the negotiations with the European Parliament.
