|Author:||European Union Publications Office|
3.1. Eligibility for active labour market measures. 3.2. Eligibility for lifelong learning or other training provisions.
3.1. Eligibility for active labour market measures
The impact of parental leave or extended absence for childcare (‘returners’) on eligibility to active labour market measures must be considered at a number of levels. In general there are no formal barriers to eligibility to these measures. Those on parental leave maintain their employed status and benefits in all countries and therefore they are no more vulnerable than other employees when a firm closes and are entitled to the same active labour market measures (Table 3.1). An exception can be found in Estonia where those on parental leave are identified as particularly vulnerable when a firm closes down, even though employment rights are protected for the duration of the leave period. Dismissal is often not documented, as after manager-employee private discussions the dismissal is redefined as resignation. Eligibility for active labour market measures may be hampered if those who ‘resign’ by choice rather than being made redundant are ineligible for active labour market policies (Laas, 2004).
In the other countries, key eligibility criteria for active labour market policies may fail to account for the specific situation of both women on an extended period of parental leave and particularly women returners. The problem of neglecting the integration issues for women returners seems to be emerging in the new active labour market policies in Germany, Ireland and the UK. In Germany the reforms of unemployment policy in 2003 have concentrated active labour market measures on those persons who are recipients of unemployment benefits. The new regulations of eligibility do not differentiate between benefits and programmes. Therefore, female returners are now in a more vulnerable situation than before 2003 as eligibility is dependent upon being a recipient of unemployment benefit. If a parent becomes unemployed during parental leave, she/he may receive unemployment benefits if she/he had fulfilled the eligibility criteria of having worked at least 12 months in a job subject to unemployment insurance contributions (mothers with children are covered by unemployment insurance until the 3rd birthday of the child and may receive another 12 months unemployment benefits). However, the growing number of jobs which are not covered by insurance may result in a growing number of mothers without access to labour market programmes (Maier, 2004).
A similar problem emerges in Ireland. Only those in search of and available for full-time work receive an unemployment payment. There is currently no entitlement to a part-time unemployment payment and therefore at present, if a woman is seeking to return to work on a part-time basis to be able to reconcile both caring and work she is unlikely to register as unemployed. Thus they are under-represented in the official statistics and remain in the ‘inactivity’ category, adversely affecting their access to labour market programmes (Barry et al., 2004).
The UK’s ‘New Deal’ programme focuses upon benefit claimants (unemployed, disabled) or spouses of benefit claimants. As women are under-represented among benefit claimants compared to their share of the ILO unemployed many inactive women are excluded from these active labour market policies. The New Deal for Partners of Benefit Claimants may particularly impact women returners. This makes back-to-work interviews with the job centre (employment service) compulsory for the not-employed partners of benefit claimants.
This means that the non-working spouses of the unemployed are expected to be job-seekers as well – a policy emphasis which was not so explicit prior to the introduction of the ‘New Deal’ programmes. It also means that partners only gain access to employment via the other partner’s status. This means that partners of anyone in employment are excluded from the new deal programmes, even if that employment is low-paid and supported through in-work benefits/tax credits (Fagan et al., 2004).
Table 3.1. Parental leave contractual guarantees
Do people on parental leave retain their employment contract and associated benefits?
BE: Yes. During the leave, one’s job is guaranteed and social rights are maintained. When the leave has ended, the employee is guaranteed to return either to his/her previous job or to a similar and comparable post. From the day the worker applied for leave until 2 months after the end of the leave, he/she cannot be dismissed except for urgent or sufficiently grounded reasons.
CZ: Yes. The employer is required to keep the employee’s position open only for the duration of maternity leave (i.e. a maximum of six months), after which time the employee on leave can be transferred to a different, though corresponding, position within the same organisation.
DK: Yes. Those on parental leave retain their employment contract and associated benefits.
DE: Yes. Persons in parental leave do have a certain protection against dismissal and have the right to return to an equivalent workplace. An unsolved problem is the re-integration into employment: in East Germany, women wishing to return from parental leave found their employing firms closed down, or with massive reductions in the workforce. The increase in fixed-term contracts leads to an increase in parents that are not fully covered by the regulation: if your contract ends during parental leave, you have no right to return to your previous workplace. Another problem is that most mothers wish to work part-time (only 20% of returning mothers worked full-time, cf. Beckmann/Engelbrech, 2001): there is no strict right to return on a part-time job.
EE: Employment rights are protected for the duration of the three-year childcare leave.
EL: Yes. After the end of parental leave, there is a right to return to the same or similar post, which in no case can be inferior to the one held by the worker before the parental leave. In both the private and public sector, employment cannot be terminated due to the exercise of the right to parental leave.
ES: Yes. Women are protected from dismissal during pregnancy while on maternity leave and all those on parental leave maintain their employment status. During the first year the employee is entitled to return to his/her former job. Otherwise, he/she is only entitled to return to a job of the same level. All the leave period counts as contributing to social security entitlements even if there are no social security contributions made. Tenure is also recognised during the whole period of leave as well as the right to enter training during this period. Long unpaid leaves for caring for children are generally included in collective agreements, but not provisions for caring for other family members.
FR: Yes. Those taking maternity leave maintain the employment conditions of economically active mothers – their contract is suspended, not ended. The inter-sector agreement on equality (March 2004) provides new guarantees for those returning to employment after maternity or parental leave (occupational interview, guarantee of equivalent job and training, etc.). Parental leave guarantees suspension of contract and, therefore, return to an equivalent job (without it necessarily being the same one). This is not the case for APE (Allocation Parentale d'Education) unless the parent has parental leave independently from APE.
Table 3.1. Parental leave contractual guarantees (cont.)
Do people on parental leave retain their employment contract and associated benefits?
IE: Yes. During parental leave an employee is regarded as being in employment and retains all of his/her employment rights (except the right to remuneration and superannuation benefits). The Parental Leave Act of 1998 states that the dismissal of an employee who exercises his/her right to parental leave or force majeure leave is regarded as unfair under the Unfair Dismissals Acts 1977-2001 unless there are substantial grounds justifying the dismissal. Following an absence on parental leave, an employee has the right to return to work in the same employment and under the same terms and conditions of employment. If it is not reasonably practicable for an employee to return to the same job, suitable alternative employment may be offered. Currently under the Parental Leave Act there is no provision to show that 'the continuity of service is preserved' as there is in the Carer's Leave Act of 2001 although it is implied in the Parental Leave Act. To remove doubt in relation to this issue the Parental Leave Act should be amended to include a provision similar to that in the Carer's Leave Act of 2001.
IT: Yes. People on maternity/parental leave retain their employment contract.
CY: Yes. Those on parental leave maintain their employed status so all their legal rights remain intact.
LV: Yes and No. During parental leave the workplace and the employment contract must be retained. The law does not emphasise associated benefits.
LT: Yes. During the period of parental leave the employee retains her/his position, with the exception of cases when the enterprise is dissolved. Law on the Supplement of Articles 16 and 19 of the Law on Sickness and Maternity Social Insurance provides for the entitlement to the social insurance maternity (paternity) benefits in respect or persons who were dismissed from their employment in case of bankruptcy or liquidation of an enterprise. These benefits are paid only to persons who have been insured in respect of sickness and maternity for a period established by law. As was discussed above, people on parental leave retain their employment contract and associated benefits, pregnant women and mothers of young children are given additional guarantees. Article 132 of the Labour Code prohibits the termination of an employment contract with pregnant women and women with a child under 3 years of age. In accordance with the Article 135 of the Labour Code, in the event of reduction in the number of employees on economic or technological grounds or due to the restructuring of the work-place, the right of priority to retain the job shall be enjoyed by those employees who are raising children (adopted children) under 16 years of age alone.
LU: Yes and No. Baby years (“années-nourrisson”) provide pension rights for parents who have interrupted their career to take care of children and have contributed at least 12 months during the 36 months before the childbirth or adoption. They are entitled to 2 years of pension rights for the first and second child and 4 years for subsequent children. However, parents are not guaranteed a return to their previous job or an equivalent post.
HU: Yes and No. Parents theoretically retain their employment contracts, and on the basis of Hungarian laws they have a thirty-day long protection from dismissal. However, it does not seem to be sufficient to secure their original post (approximately half of women returners return to their original workplaces, Lakatos, 2001). Recent research carried out by the Labour Force Survey in 1999 found that of those on parental leave over 30% thought the employer did not want to re-employ them and another 10% said their workplace had closed down while they were on leave.
MT: Yes. During maternity leave an employee is entitled to all rights and benefits which may accrue to other employees in the same employment position and at the same place of work, including the right to apply for promotion opportunities at her place of work. On return to work, a woman is entitled to return to the same job or when this is no longer possible for a valid reason, to equivalent or similar work which is consistent with her original contract. On returning to work she must remain in employment for 6 months otherwise she will be liable to pay back her employer the sum equivalent to the wages she received during the maternity leave.
NL: Yes. Those on parental leave retain their employment contract (information from the Ministry of Social Affairs and Employment, downloaded from http://verlofwijzer.szw.nl). Parental leave cannot be a reason for dismissal.
Table 3.1. Parental leave contractual guarantees (cont.)
Do people on parental leave retain their employment contract and associated benefits?
AT: No. Women returners not only face threat of dismissal but also unilateral changes of working hours or work content by employers (BMWA/BMSG 2000). Protection against dismissal ends 4 weeks after the child’s fourth birthday.
PL: Yes. There are guarantees on stability of employment relations, return to work to an equivalent position and inclusion of the leave period in the total work record.
PT: Yes. Those on parental leave maintain their employed status. If they are made redundant during this period, they are eligible for activation programmes on the same basis as other redundant employees None of these benefits imply loss of any employment rights, and the periods of absence are taken into account for pension calculation. These benefits are financed by the global contributions paid by employees and employers.
SI: Yes. During maternity and parental leave, an employee cannot be defined as redundant and her/his employment cannot be terminated.
SK: Yes. The women (or men) coming back in employment after regular maternity leave (after 28 weeks) or parental leave (usually after 36 months) are guaranteed the right to return to work to the same position.
FI: Yes. Those on parental leave retain their employment contract and associated benefits when they are looking after a child under the age of three while receiving a home care allowance.
SE: Yes. Being on parental leave does not put the employer’s benefits or employment contract at risks.
UK: Yes. The employee remains employed while on parental leave, and some terms, such as contractual notice and redundancy terms will still apply. After parental leave the employee has the right to return to the same job where four weeks or less is taken, but if this is not possible where a longer period of leave has been taken, they have the right to a job of the same or better status, terms and conditions as the old job.
BG: Yes. People on parental leave retain their employment contract and associated benefits.
IS: Yes. Those on parental leave retain their employment contract and associated benefits while on leave. Hence, the employee keeps his/her employment rights gained before the leave and accumulates rights as if in employment while on parental leave. The employee is entitled to return to his/her job upon the completion of the parental leave.
LI: Yes. Employees remain employed while on parental leave, and some terms, such as contractual notice and redundancy terms still apply. After parental leave the employee has the right to return to the same job (Arbeitsplatzgarantie).
NO: Yes. Parents on leave retain their employment contract and benefits (although problems may sometimes arise, see Section 7 below).
RO: Yes. The employers do not have the right to interrupt the employment contract of those on maternity and parental leave.
Therefore in general, active labour market policies which focus on the registered unemployed exclude non-employed women returners. However, examples of good practice can be found in Austria, Lithuania and Greece. In Austria there are several active labour market measures designed especially for parents who have been absent from the labour market for at least 6 months due to childcare obligations (the Public Employment Service’s definition of a ‘returner’ to the labour market) as well as for unemployed parents eligible for unemployment benefit or assistance. These measures include information and consultation events, refresher, further and vocational training, and financial assistance while participating in information and consultation events or training programmes. Furthermore, under the Unemployment Security Act, parents on parental leave have the right to participate in an active labour market measure after one month of being registered as unemployed (unemployed people aged under 25 and over 50 only after 3 months) (Mairhuber, 2004).
In Lithuania, in accordance with the Article 92 of the Labour Code and the Article 8 of the Law on Support of the Unemployed, there are additional guarantees in the labour market with regard to unemployment benefit, placement and participation in the active labour market programmes for mothers or fathers bringing up a child under 8 years of age. Mothers with children under 8 years of age are identified as a target group and are covered by special programmes of integration into the labour market (such as vocational training/retraining, interest free loans for starting businesses and job clubs). In 2002 women made up more than a half among unemployed persons who have been granted interest free loans by the labour exchanges and started their own business. The proportion of women with children under 8 years old among unemployed persons with additional employment guarantees who were placed into new jobs subsidised from the Employment Fund was 27% (Kanopiene, 2004).
In Greece all active labour market programmes are accessible to all the unemployed – not only to unemployment benefit claimants – provided that they register with the Manpower Employment Organisation (OAED). This resolves the problem of linking eligibility to the receipt of unemployment benefit that can serve to disadvantage both women taking an extended period of leave and women returners (Karamessini, 2004).
3.2. Eligibility for lifelong learning or other training provisions
Similar issues emerge in relation to eligibility for lifelong learning or other training provisions. In terms of formal entitlements, in the majority of countries parents on an extended period of leave or women returners are equally eligible for training/lifelong learning. Exceptions can be found in Germany, Ireland and Iceland where eligibility to training is premised on the receipt of unemployment benefits. For example, in Iceland, an unemployed person is only allowed to undertake education and training if he/she has received unemployment benefits for at least 6 months and has no prospects of finding a job (Regluger um vinnumarka sa ger ir nr. 670/1998) (Mósesdóttir, 2004). This could mean women who are finishing an extended period of leave could not be eligible for refresher training if they have not been claiming unemployment benefit. In Ireland women returners are not eligible for certain state training programmes since eligibility for many programmes is based either on the Live Register or on the household income. As discussed earlier, under Ireland’s social welfare model only those in search of and available for full-time work receive an unemployment payment. Thus they are under-represented in the official statistics and remain in the ‘inactivity’ category, adversely affecting their access to training programmes (Barry et al., 2004).
However, although there may be no formal barriers there may be ‘informal barriers’ that create obstacles to the take-up of existing opportunities. In particular, a lack of affordable childcare while attending training courses was identified as a barrier in the national reports for Spain, France, Luxembourg, Portugal, Cyprus and Poland. This is related to the timing of existing training provision which in Portugal and Luxembourg is identified as a problem when provided in out of work hours that clash with the opening hours of childcare facilities. Accessibility is also identified as a problem. Training providers are often located in large cities and those in rural areas find it less easy to access. This is mentioned as a particular problem in the report for the Czech Republic (Křížková, 2004).
The countries were also compared in relation to whether there was specific provision targeted for those finishing a period of extended parental leave or women returners, or whether their training needs were to be accommodated in other training programmes. Although lifelong learning initiatives have been given more emphasis in the employment guidelines, there has been a relatively limited development of an equal opportunities dimension to lifelong learning initiatives with many schemes focusing upon those in full-time employment rather than parents hoping to re-integrate into the labour market (Rubery, 2002). Furthermore, it is important to note that the assumption that training provision will be accommodated in other programmes is based on the premise that there is a training or lifelong learning tradition in place. However, this is not the case in all countries. The national reports for nine countries specifically highlight that there is no, or a limited, lifelong learning tradition (Austria, Denmark, Italy, the UK, Cyprus, the Czech Republic, Estonia, Lithuania and Lichtenstein).
However, in the pre-2004 Member States, there is evidence of some programmes that aim to target women returners specifically. For example, in Flanders in region of Belgium training credits were introduced that allow for career breaks or reduced working time for training and learning leaves for part-timers. Italy’s new law on parental leave gives parents a right to up to one year’s unpaid leave for lifelong learning and Portugal requires attention to gender balance in all its expanding training programmes. There would also appear to be some progress on setting targets towards this. In France, the new social cohesion plan aims to pursue existing initiatives, such as paying for childcare for those in training after leave and neutralising the period of suspension of one’s contract due to parental leave in calculating conditions required for rights to training. Those countries aiming to cultivate a lifelong learning tradition have also started to set proposals and targets in relation to women returners. The UK has asked its Learning and Skills Council to draw up an equal opportunities strategy and central to this is targeting recruitment of part-timers in some programmes. This could help smooth the transition to full-time work for some women returners. A National Skills Strategy has recently been launched and the need to provide better support to women returners after a career break is recognised. Support offered includes a new ‘learner entitlement’ for those without qualifications, and more support and information for those undertaking the training. However, one of the pre-2004 Member States, Germany, has reduced provision for these groups. Specific provision for women returners has been phased out and employers no longer receive subsidies when hiring a returner, and participation in further training is no longer paid. It should also be noted that while the majority of programmes are linked to employment status, the one exception is the Swedish adult education project for those who missed out on the upper tier of secondary education where grants are available to go back to school; women account for 67% of the participants and this measure could particularly serve as a re-integration mechanism for those women returners who have been outside of the labour market for some time caring for children.
In the new Member States and the non-EU states there are also moves towards specific policies for women returners. In Lithuania, a ‘National Lifelong Learning Strategy’ was adopted in 2004 and identifies a problem of ‘renewal of training/retraining of women after a period of maternity leave’ as among the most urgent policy issues in the Strategy. In Cyprus while there is no specific provision for those returning after parental leave the Human Resources Development Authority has special training sessions for women returners who wish to extend their skills and increase their chances of employment. In Lichtenstein some support is available to women returning to the labour market after a career break. Support measures include entitlement to tax relief for retraining and further training, so some of the costs involved in securing the training or retraining needed for women to resume work are being absorbed through tax relief provisions.
In some countries there are also moves towards encouraging employers to take responsibility for the training of these groups. In Spain, for example, some collective agreements include special clauses providing access to continuous training for employees on parental leave and in Luxembourg, within the framework of the positive actions subsidised by the Ministry of Equal Opportunity, some companies take into account the gender dimension as far as the lifelong learning of their staff is concerned. However employers cannot always be relied upon. In Italy in 2002 a special fund was allocated to companies that signed collective agreements promoting family-friendly flexibility as well as training for mothers/fathers returning to work after parental leave. Moreover, the law establishes that half of this fund is to be devoted to the financing of flexibility plans proposed by small companies (up to 50 employees). However despite the availability of funding there is a general lack of flexibility and/or refresher training plans and there seems to be a lack of interest towards these issues at company level. In Bulgaria, training provision for all employed people is dependent upon employers but this provision is very low because employers cannot afford the additional expenses of training. In Bulgaria in 2003 56% of employment is in the SME-sector and 99% of these are micro firms. These very small firms can not afford the additional costs of training and therefore the underdeveloped system of refreshing training and lifelong learning as a whole is the main problem that affects women after maternity leaves and women returners. Only in Portugal is there an obligation by law that after childcare leave the employer should provide the returnees with training and refresher workshops (Art.º 48.º of the Labour Code). However, access to this often depends on the timing of training and the availability of childcare.