C-D v S-T ET/2505033/11 A midwife sonographer, who had a baby through the use of a surrogate, brought a claim for maternity and sex discrimination against her employer after being refused maternity leave. The employment tribunal stated that UK domestic legislation on maternity rights did not apply to C-D’s situation. The tribunal made a reference to the ECJ to determine whether UK law is compliant with the European legislation from which it stems, i.e. whether a mother expecting a child through the use of surrogacy has the same rights and entitlements as non-surrogate parents under European law. The Advocate General (adviser to the court) said that a UK mother should be given maternity leave and that she should share her entitlement with her surrogate mother. The intended mother was employed at an NHS hospital and had a baby through surrogacy who she cared for – and breastfed – from birth, before she was granted a parental order by the UK family court giving her legal responsibility as a parent. The ECJ preliminary opinion was that she had been discriminated against under EU law by being denied maternity leave rights. However, in a second case heard around the same time a different Advocate General expressed a different view. In this case originating in Ireland, a mother who worked as a teacher with a child born through surrogacy in California was not discriminated against by having been denied the right to maternity leave. The adviser to the court said that whether Ireland should extend the scope of maternity leave to cover mothers through surrogacy was a matter for the Irish Parliament. The differences are on the face of it puzzling given the factual similarities between the cases, particularly with the opinions given virtually simultaneously. However, each case was argued under different parts of European anti- discrimination law, and there was a key difference in that Ireland does not allow for surrogacy, whereas UK law does. Extension of rights in 2015 Perhaps as a consequence of these and other long running cases, legislation came into effect in 2015 affecting the right to time off for new parents. Reforms under the Children and Families Act 2014 came into force on 5 April 2015 extending adoption leave to surrogacy, allowing parents in the UK expecting a child through surrogacy the same rights to time off work as other new parents. In December 2014 the Shared Parental Leave Regulations 2014 came into effect, allowing parents to share leave following the birth or adoption of their child. Aside from an initial two weeks of maternity leave for the mother, up to 50 weeks of leave and 37 weeks of pay can be shared between parents. Yet despite this apparent equalisation of rights, the court cases continued, because although parents of both genders now have an equal right to time off, the rates of payment are not the same, with maternity and adoption leave paid at a higher rate than paternity and shared parental leave. Two recent cases highlight the complexity of the issue, with an important distinction being drawn between the purpose of maternity leave and that of shared parental leave.
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CIPP | CRONER | PORTFOLIO PAYROLL
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