Part 2 Of A 2 Part Series On Leave Entitlement For Working Parents

  1. In 2019, the European Commission pursued to strengthen one of the social rights pillars of the European Union (“EU”) throughout its Member States. In so doing, it sought to address challenges faced by working parents and carers as well as contribute to the achievement of gender equality within the workforce.

The EU recognised that work-life balance poses a considerable challenge for many parents and workers predominantly due to overtime and changing work schedules, both of which are some of the concerns dissuading women from venturing out into the working world. The current domestic legal framework provides very limited incentives for men to assume an equal share of the caring responsibilities. For instance, under the Minimum Special Leve Entitlement Regulations (Subsidiary Legislation 452.101) (“S.L 452.101”), a father is only granted one (1) day of birth leave whilst female employees are granted fourteen (14) weeks together with an additional compulsory four (4) weeks of maternity leave under the Protection of Maternity (Employment) Regulations (Subsidiary Legislation 452.91). Additionally, as explained in the first part of this series, a four (4) month parental leave entitlement is granted to both male and female employees under the Parental Leave Entitlement Regulations, Subsidiary Legislation 452.78 (“S.L. 452.78”). Notwithstanding this however, EU wide studies show that 90% of fathers do not use paternity leave 1. On a local level, it is estimated that only 54% male employees are involved in the upbringing of their children, and whereas a menial 7% of male employees work part- time in order to take up family responsibilities.2

In view of this blatant ‘inequality’ between male and female employees, Directive (EU) 2019/1158 on work-life balance for parents and carers (“Work-Life Balance Directive”), adopted by the European parliament in April of 2019 – aims at modernising the existing framework and guarantee higher flexibility to working parents and carers.

Whilst no action has yet been taken by the Maltese legislator as at date of this article, Member
States were given until August 2022 to implement the following requirements into national law, aimed at achieving the results projected in the Work-Life Balance:

  1. Minimum requirements related to paternity leave, parental leave and carers’ leave

    a. Paternity leave

EU Member States must now ensure that fathers, or where insofar as recognised by national law, equivalent second parents have the right to paternity of ten (10) working days. The manner in which this is availed of, whether partly before and after the birth, is left within the discretion of a Member State to that extent that employees are granted a degree of flexibility. The ten (10) days entitlement should not be subject to period of work qualification or length of service, nor should it be subject to the marital or family status of the employee.

b. Parental leave

The position adopted by Member States, including Malta as explained in the first part of this series, is that female and male employees are granted (4) months of parental leave every year until the child has attained the age of eight (8) years. And whilst the many of the new benefits being proposed on an EU-level are already catered for under the S.L. 452.78, the Work-Life Balance Directive seeks to improve an employee’s situation by allowing two (2) out of the four (4) months of parental leave to be transferrable from one parent to another.

 Both paternity leave and parental leave shall be subject to a payment or allowance which shall be guaranteed to an amount which is at least equivalent to the amount which the employee receives in the event of a break on grounds of the worker’s state of health in cases of paternity leave. In cases of parental leave, the payment or allowance shall be defined by the Member State in a manner aimed at facilitating the use of parental leave by both parents.

c. Carers’ leave

Member States are also expected to ensure that five (5) days per year of carers leave is granted to employees providing personal care or support to a relative, or to a person who lives in the same household as the employee, and who is in need of significant care or support for a serious medical reason. For purposes of utilising such leave Member States shall retain the discretion to impose substantiation conditions.

2. Flexible working arrangements for working parents or carers.

Member States should also ensure that employees having children of at least eight (8) years of age, are guaranteed flexible working arrangements for caring purposes. Employers shall also be obliged to respond to such requests within a reasonable time and any refusals or postponements of such working arrangements should be justified.

The Work-Life Balance Directive is a valuable instrument in that it will not only improve working conditions of employees, but it will also ensure the equal uptake of caring responsibilities between men and women, closing of gender gaps and enhancing representation of women in the labour market.

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