Can companies offer men and women the same amount of maternity and paternity leave?

The case concerned a male employee who requested the same extended leave that his female co-worker was entitled to after he had ended his statutory leave. His request was denied with the explanation that only female employees were entitled to the extended leave. The employee then argued that denying him extended leave was discrimination, whereafter he submitted a claim against the company.

The main question for the European Court of Justice was, if it was discrimination only to offer female employees the right to extended leave after the end of their statutory maternity leave.

Extended leave must be justified in the woman’s biological condition and relationship to the child

The European Court of Justice first stated that women who are pregnant or who have just given birth can be offered extended leave, if justified in her biological condition and the special relationship she has to her child in the period after giving birth.

The European Court of Justice emphasized that lawful extended leave presumes that:

• The leave is directly connected to the protection of the woman’s biological condition and the special relationship to her child after giving birth
• The leave is not longer than what is necessary to protect the woman’s biological condition and her special relationship to the child after giving birth
• The scheme providing for the leave protects women against termination and poor terms

Can men also receive extended leave?

The judgement from the European Court of Justice raises the question of whether companies legally can offer male and female employees the same options when taking maternity and paternity leave.

If men are offered the same amount of leave as women, it will mean that men are receiving more leave than what they are entitled to after the Danish Act on Entitlement to Leave and Benefits in the Event of Childbirth. According to the European Court of Justice, extended leave presumes that special requirements are met. Such requirements include that the leave must be justified in biological conditions.

Male employees are not in the same situation as female employees who are pregnant, or who have just given birth. The biological considerations and special relationship to the child are therefore, as a main rule, not the same for male employees. Consequently, offering male employees extended leave after ending their statutory leave may likely be considered unlawful.

IUNO’s opinion

With its new judgement, the European Court of Justice has established specific requirements for when companies can offer extended leave. On that basis, it can be derived that offering male employees the same extended leave as female employees, who have given birth, may be considered discrimination. If male employees are entitled to the same amount of leave as female employees, male employees will consequently become entitled to more leave than their female colleagues, compared to the statutory minimum.

When companies establish the terms and conditions for leave entitlements in connection with childbirth, it is therefore important to be aware that it can be considered discrimination to offer men and women the same amount of leave.

The question is not yet clarified directly under established case law. IUNO therefore recommends that companies that wants to establish equal leave for men and women, gets a risk assessment in advance.

[The European Court of Justice’s judgement of 18 November 2020 in case C-463/19]