Pregnancy, parental leave and pay
The prohibition of pay discrimination also concerns treating employees differently because of pregnancy, childbirth, parenthood or family responsibilities.
When the difference in pay is caused by these factors the salary comparison can also be made between employees of the same gender. The person used for comparison does not always have to be an actual person. In some cases different treatment can be assessed based on how the employer should have acted according to the law or the contract.
An employee who has been temporarily moved to other duties because of pregnancy has the right to her monthly basic salary, as well as components or supplementary allowances relating to her professional status. These include but are not limited to allowances relating to her seniority, her length of service and her professional qualifications. She cannot however demand compensation and allowances that are paid as compensation for disadvantages caused by carrying out special tasks in particular circumstances if she is not in reality carrying out said tasks during pregnancy. (CJEU case Parviainen C-471/08.)
Employers do not have a statutory obligation to pay their employees during family leaves. In many fields the paternal allowance is based on collective agreements. In these cases the pay has to take into consideration all raises that the employee received before or during her pregnancy leave. The same applies to paternity leave that a collective agreement determines to be paid.
An employee who goes on pregnancy leave after an unpaid family leave cannot be disadvantaged when it comes to her pregnancy leave pay compared to employees who went on pregnancy leave straight from work. If the employee works in a field where salaries are paid out during pregnancy leave, those who go on pregnancy leave after an unpaid family leave are also entitled to this pay.
The position taken in case-law has been that pregnancy leave cannot reduce bonuses that are paid as a reward for the work during the past year. Performance-based bonuses are often of this nature. For their part, an employee on parental leave has the right to at least a share of such a bonus which is proportional to their time at work. (CJEU case Lewen C-333/97.)