CY, a male employee, was engaged by CPAM to work as a benefits inspector in the employee or executive category. CY is the father of a child born in April 2016 and, on that basis, he applied for the leave provided for in CPAM’s collective agreement, under which, on expiry of the leave provided for in Article 45 of that collective agreement, an employee who is bringing up “her child on her own” is to be entitled successively to leave of three months on half-pay or to leave of one and a half months on full pay and to unpaid leave of one year.

CPAM refused to grant CY’s application on the ground that the leave provided for in Article 46 of the collective agreement is reserved to female workers who bring up their child on their own. Syndicat CFTC asked the Social Security Directorate to extend the benefit of the provisions of Article 46 of the collective agreement to male workers who are bringing up their child on their own. That application was rejected on the ground that, under the wording of that article, the leave provided for is granted only to the child’s mother, the term ‘employee’ being in the feminine, and that that article is not discriminatory in so far as it is ancillary to Article 45 of the collective agreement, which grants a benefit only to women.

Syndicat CFTC, which acts in the interests of CY, brought an action against CPAM before the Labour Tribunal, Metz, France, arguing that the refusal to grant CY the benefit of the leave provided for in Article 46 of the collective agreement constituted discrimination on grounds of sex, prohibited both by EU law and by French law.

The Labour Tribunal, Metz referred a number of questions to the Court of Justice of the EU on the interpretation of Directive 2006/54. 

Consideration by CJEU

The Court noted that a measure such as maternity leave, granted to the woman after expiry of the legal period of protection, falls within the scope of Article 28(1) of Directive 2006/54, inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood. On that basis, such leave may legitimately be reserved to the mother, to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely.

As regards the status of parent, the Court has stated that the situation of a male worker and that of a female worker both having that status are comparable so far as concerns the bringing up of children. Consequently, measures designed to protect women in their capacity as parents cannot be justified on the basis of Article 28(1) of Directive 2006/54.

It thus follows from the case-law of the Court that, after the expiry of the statutory maternity leave, a Member State may grant additional leave to the mother where that leave concerns her, not in her capacity as parent, but in connection with the effects of pregnancy and motherhood.  Such additional leave must be intended to protect the woman’s biological condition and the special relationship between her and her child during the period following childbirth. In that regard, the aim of protecting the special relationship between a woman and her child is not, however, sufficient in itself to exclude fathers from the benefit of a period of additional leave.

The CJEU held that:     

Articles 14 and 28 of Directive 2006/54/EC must be interpreted as meaning that they do not preclude a provision of a national collective agreement which reserves to female workers who bring up their child on their own the right to leave after the expiry of the statutory maternity leave, provided that such leave is intended to protect workers in connection with the effects of pregnancy and motherhood, which is for the referring court to ascertain, taking into account, inter alia, the conditions for entitlement to the leave, its length and modalities of enjoyment, and the legal protection that attaches to that period of leave.

Why is this decision important?

An employer should take great care when adopting any policy which will, for whatever reason, apply to one set of employees only and to the exclusion of another set of employees. A policy which extends a right to leave, beyond the period of statutory maternity leave, for an employee who has recently given birth must be drafted carefully to ensure it is for the protection of the woman’s biological condition and the special relationship between her and her child. If the policy can be interpreted as protection for the woman as parent, then the exclusion of a male employee who is a sole parent may be unlawful. 
http://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-463/19 

Although the EU (Withdrawal) Act 2018 provides that a UK court or tribunal is not  bound by decisions of the CJEU after the UK leaves the EU, it is likely that UK courts and tribunals will continue to have regard to decisions (past and future) of the CJEU in regard to “retained EU law” unless the UK Supreme Court decides to depart from the CJEU on a particular matter. For this reason, we consider it important to continue to provide case reports on noteworthy CJEU decisions.”