“Breastfeeding” legislation is discriminatory

10 Nov 2010

The legislation allowed a mother, who was an employee, to take time off to feed her baby, whether this was by breast feeding or bottle feeding.  A father was only allowed to take time off if both he and the mother were employees. 

The ECJ decided that the differential between the treatment of the mother and father, (i.e. that where the mother was taking the time off, only she needed to be an employee, whereas for the father to acquire the right, both he and the mother had to be employees) was not justified and in fact, was likely to perpetuate the traditional gender roles by keeping the father’s caring role subsidiary to that of the mother.

Whilst this decision has no immediate effect on UK legislation, it highlights the current trend in decisions from the ECJ that employers can no longer assume that they can automatically justify providing additional protection to pregnant or new mothers to the detriment of male employees who are parents.   

It is likely that this case may be more significant after the introduction of additional paternity leave in April 2011, when employers will need to be sure that they can justify any differences in treatment between employees on maternity leave and those on additional paternity leave.  

When deciding whether to provide additional benefits to women who are pregnant or on maternity leave, you will need to ensure that you consider any detriment suffered by male employees in comparable circumstances and the reason why you need to provide the benefit to ensure that you can justify any less favourable treatment.