Working conditions of pregnant and nursing women in EU countries, Member States’ experience Genoveva Tisheva, Bulgarian Gender Research Foundation

Maternity protection is a central issue in the EU gender equality standards- directives and case law of the ECJ. Maternity protection - more and more linked with parental leave, paternity leave and broader issues of reconciliation in the EU- set on the social agenda of the EU through the Lisbon Strategy, the Roadmap on Gender Equality / /, etc. Maternity protection - more and more linked with parental leave, paternity leave and broader issues of reconciliation in the EU- set on the social agenda of the EU through the Lisbon Strategy, the Roadmap on Gender Equality / /, etc.

The working conditions of pregnant and nursing women are closely related with gender equality policies in EU countries. Related also to the demographic and reproductive policies and programmes of the governments- an issue of delicate balance.

The conditions in the Member States have to be in conformity with the EU standards but also with the other international universal and regional standards on maternity protection and gender equality- CEDAW, ILO Conventions, the Revised European Social Charter. Council Directive 92/85/EEC of 19 October 1992 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 Council Directive 92/85/EEC of 19 October 1992 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 Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC The EU standards are set in:

Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) – compliance has to be achieved by 15 August 2008 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) – compliance has to be achieved by 15 August 2008

Minimum protection by the EU law, namely health and safety and protection against unfavourable treatment, including specific leaves related to maternity: a leave of absence to protect health and safety of the worker if moving her to another job is not technically and/or objectively feasible a leave of absence to protect health and safety of the worker if moving her to another job is not technically and/or objectively feasible a leave in case the pregnant or breastfeeding worker is exposed to prohibited substances a leave in case the pregnant or breastfeeding worker is exposed to prohibited substances non- obligation to perform night work during pregnancy and for a period following childbirth, if detrimental to the safety or health of the worker non- obligation to perform night work during pregnancy and for a period following childbirth, if detrimental to the safety or health of the worker a leave for prenatal examinations a leave for prenatal examinations

A minimum of 14 continuous weeks’ maternity leave before and/or after birth, including at least two weeks of compulsory maternity leave A minimum of 14 continuous weeks’ maternity leave before and/or after birth, including at least two weeks of compulsory maternity leave the right to maintenance of payment and other rights and benefits of employment during the period of maternity leave the right to maintenance of payment and other rights and benefits of employment during the period of maternity leave prohibition of dismissal of pregnant workers, workers who have recently given birth and workers who are breastfeeding, during the period from the beginning of their pregnancy to the end of the maternity leave prohibition of dismissal of pregnant workers, workers who have recently given birth and workers who are breastfeeding, during the period from the beginning of their pregnancy to the end of the maternity leave

A non-transferable right to parental leave of at least three months at any time from the birth/adoption until the age of eight years of the child A non-transferable right to parental leave of at least three months at any time from the birth/adoption until the age of eight years of the child protection against dismissal on the grounds of an application for, or the taking of, parental leave protection against dismissal on the grounds of an application for, or the taking of, parental leave right to return to the same or to an equivalent or similar job right to return to the same or to an equivalent or similar job right to leave on grounds of force majeure for urgent family reasons right to leave on grounds of force majeure for urgent family reasons

There is no distinct right to paternity leave as such under EC law and paternity protection is only guaranteed by EC law if it is offered by the respective Member State Right for a woman on maternity leave or a man on paternity leave to return to his or her job or to an equivalent post and to benefit from any improvement in working conditions Right for a woman on maternity leave or a man on paternity leave to return to his or her job or to an equivalent post and to benefit from any improvement in working conditions protection from discrimination in case of less favourable treatment of a woman related to pregnancy or maternity leave, etc. protection from discrimination in case of less favourable treatment of a woman related to pregnancy or maternity leave, etc.

Additional protection of pregnancy and motherhood is provided by Directive 86/613/EEC, which applies to men and women engaged in a self-employed activity and Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. Additional standards on the issue- introduced by the broad interpretation of the rights related to pregnancy, maternity and parental leave, including the issue of paternity leave by the European Court of Justice.

Crucial elements of the ECJ contribution a refusal to employ or a dismissal of a pregnant woman due to her pregnancy or maternity and any unfavourable treatment directly or indirectly connected to pregnancy or maternity represents direct discrimination on the grounds of sex a refusal to employ or a dismissal of a pregnant woman due to her pregnancy or maternity and any unfavourable treatment directly or indirectly connected to pregnancy or maternity represents direct discrimination on the grounds of sex the protection of pregnancy and maternity rights is aimed at promoting substantial gender equality the protection of pregnancy and maternity rights is aimed at promoting substantial gender equality the protection of pregnancy and maternity leave must prevail over any other interests, in particular economic interests the protection of pregnancy and maternity leave must prevail over any other interests, in particular economic interests

Health and safety considerations cannot be taken into consideration in such a way as to be detrimental to pregnant workers Health and safety considerations cannot be taken into consideration in such a way as to be detrimental to pregnant workers periods of pregnancy and maternity leave are not to be compared to a pathological condition and considered as equivalent to illness periods of pregnancy and maternity leave are not to be compared to a pathological condition and considered as equivalent to illness women are entitled to adequate remuneration during maternity leave women are entitled to adequate remuneration during maternity leave

Maternity leave has to be included in the calculation of seniority when determining conditions for access to work, etc. Maternity leave has to be included in the calculation of seniority when determining conditions for access to work, etc. a woman in the process of in vitro fertilization treatment is not covered by the protection against dismissal for pregnancy and maternity but can benefit of the general protection against discrimination based on sex / recent Mayr case/ a woman in the process of in vitro fertilization treatment is not covered by the protection against dismissal for pregnancy and maternity but can benefit of the general protection against discrimination based on sex / recent Mayr case/

Main trends in legislation of the Member States compared to the EU standards: equal or equivalent maternity protection applicable to the private and the public sector in most EU countries equal or equivalent maternity protection applicable to the private and the public sector in most EU countries many countries provide for longer periods of maternity leave than the minimum of 14 weeks set in the maternity protection Directive- some New Member States / Bulgaria, Hungary/, the UK and Ireland, etc. many countries provide for longer periods of maternity leave than the minimum of 14 weeks set in the maternity protection Directive- some New Member States / Bulgaria, Hungary/, the UK and Ireland, etc. a longer period of maternity leave is usually granted for multiple births, or a longer leave on the third birth a longer period of maternity leave is usually granted for multiple births, or a longer leave on the third birth in most countries the period of maternity leave consists of compulsory and facultative leave in most countries the period of maternity leave consists of compulsory and facultative leave equivalent period of maternity leave is granted in case of adoption equivalent period of maternity leave is granted in case of adoption

In most countries, during the period of maternity leave, employees are entitled to a minimum maternity benefit, which can reach the equivalent of full pay on the basis of collective agreements In most countries, during the period of maternity leave, employees are entitled to a minimum maternity benefit, which can reach the equivalent of full pay on the basis of collective agreements a very strong protection against dismissal of a pregnant worker or a person on maternity leave in most countries, in some countries the prohibition being close to absolute / ex. in Bulgaria- only if the enterprise goes bankrupt/; in some countries, protection extended beyond the period of maternity leave a very strong protection against dismissal of a pregnant worker or a person on maternity leave in most countries, in some countries the prohibition being close to absolute / ex. in Bulgaria- only if the enterprise goes bankrupt/; in some countries, protection extended beyond the period of maternity leave in most States, a worker returning to work after her maternity leave to the same or similar job is protected not only against dismissal but also against unfavourable treatment in most States, a worker returning to work after her maternity leave to the same or similar job is protected not only against dismissal but also against unfavourable treatment Ban on the night work and work overtime for pregnant women and those breasfeeding Ban on the night work and work overtime for pregnant women and those breasfeeding

Extensive regulation of reconciliation measures- parental leave and paternity leave: in most European countries, parental leave is an individual and non-transferable right most often unpaid or partly paid by the employer as a result of the collective agreement in most European countries, parental leave is an individual and non-transferable right most often unpaid or partly paid by the employer as a result of the collective agreement transferable flexible working arrangements provided in some countries transferable flexible working arrangements provided in some countries parental leave is generally taken by women therefore incentive measures for fathers parental leave is generally taken by women therefore incentive measures for fathers guarantees provided against dismissal and for returning to the same or similar job guarantees provided against dismissal and for returning to the same or similar job

Paternity leave introduced- from 2 to 90 days Paternity leave introduced- from 2 to 90 days Paternity leave paid in some countries but protection against dismissal and less favourable conditions upon return not always available Paternity leave paid in some countries but protection against dismissal and less favourable conditions upon return not always available Leaves for urgent family matters provided as well as innovative family- friendly leaves Leaves for urgent family matters provided as well as innovative family- friendly leaves Existence of good practices by the social partners on maternity leave and other types of leaves, as well as other measures for reconciliation Existence of good practices by the social partners on maternity leave and other types of leaves, as well as other measures for reconciliation

Illustration of the trends through highlights from the legislation in Greece, Bulgaria, Bulgaria, France, France, Hungary Hungary and Sweden and Sweden Conclusions………..