Increased Protection for Women on Maternity Leave

Introduction
Over the last number of years the European Union has been very proactive when it comes to legislating and judicating on employment affairs. Recently the European Commission has continued this trend through the drafting of a proposed amendment to Council Directive 92/85/EEC, the primary objective of which is to improve the protection offered to pregnant workers and workers who have recently given birth or are breastfeeding.

In essence the proposal seeks to extend the minimum duration of maternity leave and to increase maternity pay in a manner deemed proportionate to achieve the stated aim of improving the health and safety of women as well as allowing women to better reconcile their professional and family obligations. This in effect is fostering equal opportunities between women and men in the labour market.

Minimum Maternity Leave
As it currently stands; the duration of maternity leave throughout EU Member States varies from 14 weeks in a small number of Member States to 28 weeks in others and, in certain circumstances, up to 52 weeks, not all of which is paid.

The current situation in Ireland is that:

• a pregnant employee may take up to 26 consecutive weeks of maternity leave and is also entitled to take a further 16 consecutive weeks additional maternity leave beginning immediately after the end of the 26 weeks period.
• the employee may choose when she takes her maternity leave provided it includes a core period of 2 weeks leave before the end of the expected week of confinement and 4 weeks leave after the end of the expected week of confinement.

Article 9 of the new EU proposal, if ratified, would introduce new rules in respect of the minimum period of maternity leave as follows:

• The proposal extends the minimum length of maternity leave from 14 to 18 weeks. This increase is designed to allow women to recover from pregnancy and childbirth. Furthermore, it is designed to allow women to have more time with their children, and to be able to breastfeed for a longer period. This would not have any undue impact on the duration of maternity leave in Ireland in light of the fact that the minimum duration in Ireland is 26 consecutive weeks. Furthermore, the proposal does not seek to regulate the amount of additional leave that an employee may take, leaving this to the discretion of each individual Member State.
• Under existing EU rules, the duration of maternity leave must include a core period of two weeks before or after confinement. The proposal would see that this is amended such that maternity leave would have to include a core period of 6 weeks after the end of the expected week of confinement. This proposal, if ratified, would result in a change to existing Irish rules as current Irish legislation only requires a core period of 4 weeks after the end of the expected week of confinement.

Maternity Pay
The Commission's proposal outlines that employees on maternity leave should receive 100% of their salary equivalent to the full monthly salary received prior to the maternity leave. However, this is more of a principle or goal to be achieved rather than a mandatory requirement. Accordingly, the payment may be subject to a ceiling, to be determined by each member state.

Protection of Employment
The proposal seeks to afford further protection to the employment of employees on maternity leave by requiring Member States to take account of the case law of the European Court of Justice. In general, the proposal seeks to prohibit all preparations for a possible dismissal not related to exceptional circumstances.

The proposal would also require employers, where the employee requests, to outline clearly in writing why they have dismissed an employee within six months of the end of her maternity leave. This is a huge increase as currently employers are subject to this requirement where they dismiss an employee during their maternity leave. The proposal also reaffirms the current Irish position that following maternity leave, the woman has the right to return to the same job or to an equivalent post on terms and conditions that are no less favourable, and the right to benefit from any improvement in working conditions to which she would have been entitled during her absence.

Furthermore, when returning from maternity leave the employee has a right to ask her employer to adapt her working arrangements to the new family situation and the employer is obliged to consider such a request. However, the employer has no obligation to accept or follow-up on the request, taking into account the needs of the business as well. The Employer has total discretion in this regard.

As this proposal is up for consideration very shortly by the European Parliament and the Council, employers should be aware of potential changes to maternity protection in Ireland in the near future. On a positive note, Ireland is clearly acknowledging and respecting the rights and entitlements of pregnant employees as the proposal brings very little in the way of new requirements for Irish Employers.