Select Committee on European Scrutiny Thirty-Eighth Report

2   Maternity leave



COM(08) 637

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Draft Directive amending Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding

Commission staff working document: summary of impact assessment

Commission staff working document: impact assessment

Legal baseArticles 137(2) and 141(3) EC; co-decision; QMV
Document originated3 October 2008
Deposited in Parliament13 October 2008
DepartmentBusiness, Enterprise and Regulatory Reform
Basis of considerationEM of 27 October 2008
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information requested


2.1  Under Article 2 of the EC Treaty, the Community's task includes promoting a high level of employment and social protection, equality between men and women and raising standards of living and the quality of life. The Treaty contains specific powers and duties for Community action to achieve these objectives. For example, Article 137(1) requires the Community to support and complement the activities of Member States on such matters as working conditions and equal treatment of men and women at work and in employment opportunities. Article 137(2)(b) gives the Council power to adopt Directives setting minimum requirements for those matters.

2.2  Article 141(3) of the EC Treaty requires the Council to adopt measures to ensure that the principle of equal opportunities and equal treatment of men and women are applied in matters affecting employment and occupation.

2.3  In 1992, the Council adopted a Directive ("the Pregnant Workers Directive") on measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.[5] Among other things, the Directive established minimum entitlements to maternity leave and maternity pay and prohibited dismissal during the period from the beginning of a pregnancy until the end of maternity leave (save in exceptional cases not connected with the workers pregnancy).

2.4   Paragraph 1 of ILO Maternity Protection Recommendation 2000 (No.191) says that:

"Members should endeavour to extend the period of maternity leave … to at least 18 weeks".

2.5  In 2008, the European Council agreed that:

"Efforts should be pursued to reconcile work with private and family life for both women and men".[6]

The document

2.6  The Commission's Explanatory Memorandum says that the draft Directive takes account of the Commission's consultations in 2006 and 2007 with European organisations representing employers and employees, Member States, the EC Advisory Committee on Equal Opportunities for Women and Men, the EC Advisory Committee on Safety and Health at Work and others. In the Commission's view, amendments to the Pregnant Workers Directive to increase the minimum period for maternity leave, increase maternity pay and give pregnant workers additional protection are proportionate ways to improve the health and safety of women, help them reconcile their work and family obligations and promote equal opportunities between men and women in employment. Accordingly, the Commission proposes this draft Directive.

2.7  It provides for the replacement of Article 8 (Maternity Leave) of the Pregnant Workers Directive by a new Article, the main provisions of which:

  • require Member States to take the measures necessary to ensure that a worker who is pregnant, who has recently given birth or who is breastfeeding is entitled to a continuous period of maternity leave of at least 18 weeks (rather than 14 weeks, as at present);
  • require that those 18 weeks include compulsory leave of at least six weeks after childbirth;
  • require Member States to ensure that women can choose when to take the non-compulsory portion of maternity leave;
  • require the pre-natal period of maternity leave to be extended by any period between the expected date and the actual date of childbirth, if later; and
  • require Member States to ensure that additional maternity leave is granted in the event of premature childbirth, hospitalisation of the baby at birth, multiple births or birth of a baby with disabilities.

2.8  The draft Directive proposes the replacement of Article 10 (Prohibition of Dismissal) of the Pregnant Workers Directive with a new Article which:

  • prohibits preparations (our emphasis) for the dismissal of a worker as well as the actual dismissal of a worker between the beginning of her pregnancy and the end of her maternity leave, save in exceptional circumstances not connected with her pregnancy; and
  • retains the present requirement for the employer to give in writing "duly substantiated grounds" for a worker's dismissal during her maternity leave and adds a requirement for employers, at the request of the worker, to provide written substantiation if she is dismissed within the six months of her return from maternity leave.

2.9  The draft Directive also proposes amendments to Article 11 (Employment Rights) of the Pregnant Workers Directive. The main amendments are as follows:

  • when she returns from maternity leave, the worker would be entitled not only to go back to her old job, or an equivalent one, on terms and conditions which are no less favourable, but also to benefit from any improvements in terms and conditions to which she would have been entitled if she had not taken maternity leave; and
  • the amount of monthly maternity pay should guarantee the woman an income equivalent to her month salary in the month before her maternity leave begins (or her average monthly salary) subject to any lower amount set by the Member State in national legislation so long as the lower amount is not less than the payment the woman would receive if she were on sick leave.

In its Explanatory Memorandum, the Commission says that, according to the case law of the European Court of Justice, it is acceptable for EC legislation based on Article 137 to regulate questions of pay.[7]

2.10  The draft Directive also requires Member States take such measures as are necessary:

  • to ensure that a women worker is able during maternity leave, or on return, to ask for changes to her working hours and that her employer is obliged to consider the request taking the employer's and employee's needs into account;
  • to ensure that in civil court proceedings where a woman worker alleges that there has been a breach of her rights under the Directive, the onus is placed on the respondent to prove that there has not been a breach;
  • to protect individuals from victimisation by their employer or any one else as a consequence of a claim that their rights have been breached; and
  • to establish effective, proportionate and dissuasive penalties for breaches of the national legislation to give effect to the Directive.

2.11  Member States would be required, within two years of the adoption of the Directive, to bring into effect the national legislation necessary to comply with its provisions.

The Government's view

2.12  In his Explanatory Memorandum of 27 October 2008, the Minister for Employment Relations at the Department for Business, Enterprise and Regulatory Reform (Mr Pat McFadden) tells us that the Government agrees with the Commission's aim of ensuring that parents have the support they need to reconcile their work and family responsibilities. To that end, the UK has built on the minimum requirements specified by the Pregnant Workers Directive. He says that:

"Supporting parents in reconciling their work and family responsibilities also helps to support the businesses that employ them. It is important that measures are developed in line with Better Regulation principles and designed to minimise burdens on employers, including small business. The UK's provisions have been carefully developed in close consultation with parents and their employers and have been implemented through a step-by-step, evidence-based approach. This has enabled the UK to build on the EU's firm baseline and ensure the UK's provisions are tailored to the UK's conditions and have the buy-in of employers. Any action at EU level should respect these principles and protect the domestic agreements we have reached in consultation with workers and employers.

"The current UK provisions for maternity pay have developed to help mothers take time off work and recognise their special position in the workforce. In the UK, Statutory Maternity Pay (SMP) is paid at 90% of earnings with no upper limit for the first 6 weeks, and a maximum of £117.18 for the remaining 33 weeks. State paid Maternity Allowance (MA) is similar but with a maximum of £117.18 throughout the 39 weeks of payment. The level of UK maternity pay is well above the minimum level of statutory sick pay set by the original directive and the evidence shows that our current system works as the majority of women (around 88%) take all their paid maternity leave. The proposal for the revised directive is to require the payment of full pay during maternity leave albeit subject to a cap. The potential of full pay is a significant spending risk and is at variance with the UK's general scheme of benefit payments — basic flat rate benefits topped up according to individual family need by a system of means-tested benefits and tax credits. While a mandatory move to full pay during maternity leave is not the Commission's intention and pay may be subject to a ceiling, the UK will be seeking further legal clarity in this area.

"The UK has had in place a right for employees to request flexible working since 2003 and its introduction has been a great success — it has contributed towards a cultural change where working patterns are discussed more openly and freely. The UK right allows mothers and fathers of young or disabled children and carers of adults to request a flexible working pattern. This is due to be extended to those with parental responsibility for children aged 16 and under. Experience in the UK has shown that over 90% of requests from working parents and carers are granted. The majority of requests are made informally and the law offers a fallback. The UK is concerned that the draft does not allow requests to be refused on grounds of business needs alone. We are also concerned that enshrining a right to request flexible working within the pregnant workers directive will reinforce the view that flexible working is a women's issue.

"In the UK all employed women are entitled to one year's maternity leave, although they may return earlier if they wish. Having a fixed maternity leave period which applies to all women enables women and their employers to know from the outset how much maternity leave mothers will be entitled to; giving them both the information they need to plan. The length of the leave available in the UK ensures that a mother has sufficient leave to take account of her needs if her child is premature or hospitalised, or she has a multiple birth. The proposal to allow mothers to take additional leave in these types of situations would increase the administrative burden for employers managing maternity absence and create uncertainty for mothers and their employers about the overall length of maternity leave, reducing their ability to plan. The Government will be seeking clarity about how to reconcile the objectives of the Commission proposal with the reality of a much higher maternity leave provision.

"In the UK women have the freedom to choose to take their maternity leave any time from the 11th week before their baby is due. The UK is concerned that Article 8.2 as proposed, in providing complete flexibility to a woman in when to take her non-compulsory maternity leave could mean that in the UK a mother could take the majority of her maternity leave prior to confinement, by choosing to start their maternity leave early in their pregnancy. This contradicts the aim of the proposal to provide additional health protections following the birth of the child."

2.13  Finally the Minister tells us that the provisions of the draft Directive, if given effect, would add to employers' costs and increase the UK's social security expenditure. The Government will prepare its own Impact Assessment of the proposals. It will also hold public consultations on them.


2.14  Maternity leave is a matter of much political importance. The aims of the proposed Directive appear reasonable; and the legal bases for it seem to be appropriate.

2.15  On the other hand, the Government has a number of questions and doubts about the draft Directive which appear to us to be legitimate. It will, therefore, be seeking clarification from the Commission. Accordingly, we ask the Minister for progress reports on the negotiations and on his Department's public consultations. Meanwhile, we shall keep the document under scrutiny.

5   Council Directive 92/85/EEC: OJ No. L 348, 28.11.92, p.1. Back

6   European Council meeting on 13-14 March 2008, Presidency Conclusions, page 10, paragraph 16, penultimate sentence. Back

7   Commission's explanatory memorandum, page 9, first full paragraph. Back

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