Interpretation of the Act on Equality between Women and Men and the Pregnant Workers Directive 92/85/EEC: right to return to work within 14 weeks of the start of pregnancy leave (TAS 697/2023, issued on 13 March 2024)
After being contacted, the Ombudsman for Equality presented in statement 697/2023 a legal assessment of whether the protection of pregnant workers and the prohibition of discrimination allowed preventing an employee who has recently given birth from returning to work before 14 weeks has elapsed from the start of the employee’s pregnancy leave or if this should be considered discrimination.
The Ombudsman for Equality was requested to issue a statement on the interpretation of the Act on Equality between Women and Men (‘Equality Act’) and the Pregnant Workers Directive 92/85/EEC underlying it in relation to the protection of an employee in the teaching sector who had recently given birth and the employee’s right to interrupt their pregnancy leave for the summer and to receive pay paid for this period. If the employee was not allowed to return to work for the summer from her statutory family leave, this would affect the payment of the employee’s wages.
The Ombudsman for Equality’s statement on the interpretation is not binding on courts. Any disputes on the more detailed interpretation of collective agreements must always be finally resolved by bringing the case to the Labour Court, if the parties cannot settle the case by negotiation.
Applicable provisions
The prohibition of discrimination against pregnant workers and workers who have recently given birth is based on the EU Pregnant Workers Directive 92/85/EEC, which lays down a right to maternity leave of at least 14 continuous weeks to pregnant workers. This must include a compulsory maternity leave of at least two weeks. The Directive lays down a requirement for a risk assessment carried out by employers and the resulting required measures, which are the basis of pregnant worker protection. Employer’s must assess the exposure of workers that could endanger the workers’ safety or health or affect the pregnancy or breastfeeding of workers, and take measures to ensure that workers are not exposed to such risks. The Pregnant Workers Directive may not be invoked contrary to its purpose to weaken true equality.
According to the Equal Treatment Directive 2006//54/EC, in questions related to protecting a woman’s biological condition and the special relationship between a mother and a child, the employer’s actions cannot result in the worker being treated unfavourably. Such conduct is discriminatory towards women based on pregnancy or maternity leave, and constitutes direct discrimination based on gender within the meaning of the Equal Treatment Directive The previous or future status of a pregnant worker or a worker on maternity leave may not be weakened by the fact that the worker is currently pregnant or on family leave (Court of Justice of the European Union’s decision in case C-284/02 Sass).
Finland’s national Non-Discrimination Act also states that workers may not be placed in a less favourable position because of pregnancy or family leave compared with the position they would have been without the pregnancy or the family leave. In the case of direct discrimination based on gender, for the counterparty to be deemed not to have violated the prohibition of discrimination, the counterparty must prove that it had acceptable non-discriminatory grounds for its actions. Actions need not be carried out with the purpose to discriminate for them to be deemed discriminatory. Material are the real effects of the actions.
After the family leave reform, the pregnancy allowance paid to the parent who gives birth is paid for 40 days, and an employee is entitled to a pregnancy leave during the same period pursuant to chapter 4, section 1 of the Employment Contracts Act. After the pregnancy leave, both parents have an equal right to the parental leave laid down in section 1 and to the parental allowance paid for the parental leave pursuant to the Health Insurance Act.
The right to the parental allowance and parental leave is a general benefit to which all parents are entitled and the purpose of which is securing child care for children. Legislation does not require that the pregnancy leave and the parental leave are uninterrupted and consecutive. However, the parent that gave birth has the right to receive pregnancy and parental allowance for an uninterrupted period of 105 business days. In the Government Proposal for the Health Insurance Act (HE 129/2021), this is considered to meet the requirement of the Pregnant Workers Directive for a right to maternity leave of at least 14 continuous weeks.
A parent that gave birth may not be treated differently
If a non-birthing parent on parental leave is allowed to interrupt their parental leave for the duration of the summer and are therefore entitled to receive pay for that period, but a parent that gave birth is not allowed to interrupt their parental leave before a total of 14 weeks has elapsed from the start of their pregnancy and parental leave, parents that give birth are treated unfavourably compared to other parents on parental leave.
The above gives reason to assume that the prohibition of direct discrimination has been violated. Such a practice would place parents who give birth to a less favourable position after the pregnancy allowance period in terms of parental leave when compared with other parents. Such a practice could also be considered to be contrary to the objectives of the Pregnant Workers Directive and the Equality Act.
To prove that discrimination has not occurred, such a practice would require that acceptable and non-discriminatory grounds can be presented for it. After this, the Ombudsman for Equality assessed whether invoking the provisions of the Pregnant Workers Directive and the Employment Contracts Act can be considered acceptable grounds for treating parents that give birth differently.
Provisions of the Employment Contracts Act cannot be interpreted to the detriment of employees who have recently given birth
Chapter 4, section 2 of the Employment Contracts Act lays down protection for pregnant employees and employees who have recently given birth. According to the section, employees are allowed, with the employer’s consent, to only perform work that does not pose a risk to the employee or their unborn or newly born child within the 14 weeks following the start of pregnancy leave. According to the Government Proposal for the amendment of the Employment Contracts Act (HE 129/2021, p. 151), performing work during maternity leave requires that the parties of the relevant employment contract are in agreement and deem that the work to be performed will not endanger the employee or the child. The employer therefore has the right to end the performance of the work if the employer deems that the safety of the pregnant employee or the employee who has recently given birth or that of other persons is endangered. This right arises from the employer’s general obligation to ensure occupational safety. The family leave reform did not introduce any amendments to the content of this provision. Any possible changes to interpretation practices therefore cannot be justified by invoking the legislative amendments.
In the Ombudsman’s view, the provision of chapter 4, section 2 of the Employment Contracts Act pertains to risk assessment in mutual agreement, and does not mean that the employer’s consent is required if a parent who has given birth wishes to take their pregnancy and parental leave in some other manner than taking 14 consecutive weeks of leave. In the Ombudsman for Equality’s view, a situation where an employee who has recently given birth is prevented from returning to work solely based on the return requiring the employer’s consent should be considered as discriminatory, if risks have not been assessed at all or if there are no risks.
The Employment Contracts Act does not require that the pregnancy leave and the parental leave are uninterrupted. Employees are free to take parental leave whenever they need it for taking care of their child. It also unacceptable to require that for an employee who recently gave birth to return to work before the 14 weeks have elapsed, the employee must take at least one period of parental leave within the meaning of the Employment Contracts Act even if they have no reason related to childcare to do so.
19.04.2024
