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Additional paternity leave

Posted on 15th October 2010
Case law

Regulations provide for additional paternity leave and payment provided that the partner has not exhausted their own maternity entitlements. The partner must therefore be employed.

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it may be discriminatory for male rights to be conditional on the employment status of the female partner

Alvarez v Sesa Start Espana [2010]

Background 

In this case, heard by the Court of Justice of the European Union, a similar provision in Spanish law has been considered. The Spainish provision gives time off to wean a child under nine months old. A male employee could take this leave only if the mother was also employed.

The decision

The Court held that the principle of equal treatment 'precluded' national laws where their effect was that:

'female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child's birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child's mother is also an employed person.'

In practice

This ruling could well cause the Government to revisit the fundamental rights under the Regulations on the basis that it may be discriminatory for a male's rights under the Regulations to be conditional on the female partner's employment status. 

The case may also form the basis of arguments in the future that male employees should be entitled to any enhanced benefits (for example pay) afforded to female employees whilst on maternity leave.

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