Maternity and Paternity Leave

Maternity and Paternity Leave

The Court of Justice of the European Union (CJEU) recently considered the case of Moritull v INSS where a father of a child was excluded from entitlement to maternity leave and maternity benefit where the mother was not employed.
Following an appeal from a Spanish national court the CJEU held that it was lawful for a member state make a provision to exclude a father in this way.
According to Spanish law the mother’s contract of employment is suspended for a period of 16 weeks which includes a compulsory period of maternity leave of 6 weeks. The mother can then return to work after the first 6 weeks and choose to allocate the remaining 10 weeks’ leave to the father. In a situation where both parents work the father is entitled to the leave.
In this case the father was employed but the mother was not employed. On the basis that the mother was not employed and therefore did not enjoy any primary right to maternity leave there was no right to leave that could be transferred to the father of the child.
The rules relating to maternity and paternity leave in the UK can appear complicated at times especially since fathers have now been given the option to take paid Additional Paternity Leave if the mother of the child returns to work. Effectively the mother is entitled to 26 weeks of Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave. If she returns to work after 26 weeks then the father can take the remaining 26 weeks of leave in a similar way to the case described above.
As the rules on maternity and paternity rights are handed down by the EU it is likely that the same rules would apply in the UK.
If you consider that your employer is not allowing you to exercise any of you maternity or paternity rights or you may have been treated unfairly for exercising your rights please contact the employment team at Michael Lewin Solicitors and our specialists will advise you if we are able to assist you with a claim.
Written by
Anthony Fox
Recent Posts

Leave a Comment