RELEVANT COURT CASES
With all types of statutory leave and pay, with the exception of maternity, being available to all workers, you might be forgiven for thinking that the number of cases of discrimination being heard by the courts would have all but disappeared. However, there are still important cases being heard which contradict this view.
The European equal treatment directive states that men and women must not be discriminated against at work on the ground of their sex. As a consequence, much of the UK laws are influenced by laws originating in the EU.
The following cases show how we have arrived at the position we have today.
Pedro Manuel Roca Álvarez v Sesa Start España ETT SA 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. When the case was heard by the European Court of Justice (ECJ) the court said 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. The Court went on to say that 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”.
7
IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
Made with FlippingBook - Online magazine maker