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Is an unequal parental leave policy equal treatment?

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Legal news
calendar 30 October 2022
globus Denmark

Can companies offer mothers more maternity leave than the other parent without discriminating? In a recent case, the Danish Board of Equal Treatment looked at a collective agreement that offered more weeks of paid maternity leave than paternity leave. The inequality was lawful because the allocation aimed at protecting a mother’s condition in relation to pregnancy and maternity.

A male doctor submitted a complaint to the Danish Board of Equal Treatment because a collective agreement offered more paid maternity leave than parental leave. According to the agreement, mothers could take 14 weeks of paid maternity leave followed by six weeks of paid parental leave. The other parent was eligible to take two weeks of paid paternity leave followed by seven weeks of paid parental leave. In addition, the parents could freely divide three weeks of paid parental leave between them.

The Board of Equal Treatment found that the discrimination was lawful because the agreement’s protection of the birthing parent was due to pregnancy and maternity. Therefore, the discrimination was lawful. The Board did not consider if it was lawful to offer mothers less paid parental leave compared to the other parent.

While this conclusion relates to the old parental leave rules, it may serve as an example of what flexibility companies have to continue arguing that it is possible to make an unequal leave allocation under the new rules.

New parental leave rules as a gamechanger?

Because of the allocation of leave periods under the old rules, mothers generally received more paid leave than the other parent. This allocation was lawful discrimination because the inequality occurred during the maternity leave period – a period justified by the mother’s biological condition after birth – and not the parental leave period.

It remains unclear what model is the right one under the new rules. The new rules offer a completely equal leave entitlement after childbirth. We have described that here.

There are two ways to go under the new rules:

  • Equal leave allocation (illustratively, the 24-24 solution)
  • Unequal leave allocation for biological reasons (illustratively, the 10-2 solution)

By applying the first option, the allocation aligns with the new rules by offering the parents the same entitlement. The logic is that the period is one single leave period without distinction between the different underlying types of leave (i.e., maternity, paternity, and co-mother leave).

By applying the second option, the allocation follows the logic of the old rules where the mother’s biological condition is taken into account. The Board of Equal Treatment’s conclusion confirms that such an unequal allocation would have to be limited to the maternity leave period. However, one question that remains is if the unequal allocation can be stretched beyond that - to the parental leave period - to allow fathers and co-mothers a better parental leave entitlement under the new rules than mothers.

IUNO’s opinion

Most companies have already updated the parental leave policies and sent the first employees on leave under the new rules. Many policies reflect the most obvious solution, which is to align with the underlying legal rules and offer parents an equal entitlement in the form of a 24-24 solution. The question is if the different solutions that have been applied are lawful in practice.

IUNO recommends that companies are careful when allocating leave unequally. The reason is that it remains unclear to what extent an unequal allocation is lawful in practice. In this connection, companies should remember that the new rules aim to promote an equal labor market by eliminating the unequal leave allocation between parents. This could assist companies in deciding what solution to apply to the parental leave policy.

[The Board of Equal Treatment in case no. 9691 of 10 May 2022]

A male doctor submitted a complaint to the Danish Board of Equal Treatment because a collective agreement offered more paid maternity leave than parental leave. According to the agreement, mothers could take 14 weeks of paid maternity leave followed by six weeks of paid parental leave. The other parent was eligible to take two weeks of paid paternity leave followed by seven weeks of paid parental leave. In addition, the parents could freely divide three weeks of paid parental leave between them.

The Board of Equal Treatment found that the discrimination was lawful because the agreement’s protection of the birthing parent was due to pregnancy and maternity. Therefore, the discrimination was lawful. The Board did not consider if it was lawful to offer mothers less paid parental leave compared to the other parent.

While this conclusion relates to the old parental leave rules, it may serve as an example of what flexibility companies have to continue arguing that it is possible to make an unequal leave allocation under the new rules.

New parental leave rules as a gamechanger?

Because of the allocation of leave periods under the old rules, mothers generally received more paid leave than the other parent. This allocation was lawful discrimination because the inequality occurred during the maternity leave period – a period justified by the mother’s biological condition after birth – and not the parental leave period.

It remains unclear what model is the right one under the new rules. The new rules offer a completely equal leave entitlement after childbirth. We have described that here.

There are two ways to go under the new rules:

  • Equal leave allocation (illustratively, the 24-24 solution)
  • Unequal leave allocation for biological reasons (illustratively, the 10-2 solution)

By applying the first option, the allocation aligns with the new rules by offering the parents the same entitlement. The logic is that the period is one single leave period without distinction between the different underlying types of leave (i.e., maternity, paternity, and co-mother leave).

By applying the second option, the allocation follows the logic of the old rules where the mother’s biological condition is taken into account. The Board of Equal Treatment’s conclusion confirms that such an unequal allocation would have to be limited to the maternity leave period. However, one question that remains is if the unequal allocation can be stretched beyond that - to the parental leave period - to allow fathers and co-mothers a better parental leave entitlement under the new rules than mothers.

IUNO’s opinion

Most companies have already updated the parental leave policies and sent the first employees on leave under the new rules. Many policies reflect the most obvious solution, which is to align with the underlying legal rules and offer parents an equal entitlement in the form of a 24-24 solution. The question is if the different solutions that have been applied are lawful in practice.

IUNO recommends that companies are careful when allocating leave unequally. The reason is that it remains unclear to what extent an unequal allocation is lawful in practice. In this connection, companies should remember that the new rules aim to promote an equal labor market by eliminating the unequal leave allocation between parents. This could assist companies in deciding what solution to apply to the parental leave policy.

[The Board of Equal Treatment in case no. 9691 of 10 May 2022]

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Hessellund Klausen

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Astrup

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Cecillie

Groth Henriksen

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Johan

Gustav Dein

Associate

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