Pregnancy, maternity, and leave related to work-life balance for workers (Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 2019/1158)

• Author: Panagiota Petroglou
• Pages: 63-98

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5Pregnancy, maternity, and leave related to work-life balance for workers

(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and

2019/1158)242

5.1General (legal) context

5.1.1Surveys and reports on the practical difficulties linked to work-life balance

On the occasion of the recent CJEU judgment of 18 February 2018 in the case C-103/16,

Porras Guisado,243 an interesting survey was published in legal journals and reviews,

dealing with aspects of Greek legislation and case law that do not comply with the EU

acquis.244 On the one hand, the author of the survey makes reference to the distinction

made by the CJEU in the said judgment between protection against dismissal itself, as a

preventative measure, and protection, by way of compensation, from the consequences

of dismissal.245The author finds that Greek legislation offers only protection from the

consequences of dismissal in a reparatory way: if there is no serious ground thereto, the

dismissal is judicially declared null and void, i.e. it is deemed as never having happened;

the worker retains her post (no reinstatement is needed) and is awarded full back pay (the

whole pay which she would have received had she not been dismissed), plus legal interest

and possibly moral damages.

According to the author, even this reparatory approach is not sufficient, given that it does

not constitute the real and effective compensation or reparation provided in Article 18

Directive 2006/54/EC; this is so because full back pay can be significantly reduced or even

eliminated in the following (not unusual) cases: (i) if the court upholds the employerΣs

potential objection that the back pay due should be counterbalanced with the paid

termination compensation; (ii) if the court upholds the employerΣs potential objection that

the sum gained by the dismissed woman from offering her work to another employer in

the period following the unlawful termination until the issue of the final judgment should

be deducted from the back pay due; (iii) if the court upholds the employerΣs potential

objection that the wronged womanΣs claim to back pay is in abuse of the law because after

the termination she deliberately avoided looking for another job with another employer.

Most importantly, the author deplores the lack of any preventative protection against

unlawful dismissal on the grounds of pregnancy/maternity: instead of providing that

dismissal is permitted only Ρin exceptional casesΣ, as provided by Article 10(1) Directive

92/85/EEC, the Greek transposing legislation (Article 10 decree 176/1997) uses the

242 Masselot, A. (2018), Family leave: enforcement of the protection against dismissal and unfavourable

treatment, European network of legal experts in gender equality and non-discrimination, available at

www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-dismissal-and-

unfavourable-treatment-pdf-962-kb; McColgan, A. (2015), Measures to address the challenges of work-life

balance in the EU Member States, Iceland, Liechtenstein and Norway, European network of legal experts in

gender equality and non-discrimination, available at: www.equalitylaw.eu/downloads/3631-reconciliation.

243 CJEU, C-1033/16, Jessica Porras Guisado v Bankia SA and Others, 22 February 2018.

244Gavalas, σ. (2018), Ρ         .. 

        –    

...  18.2.2018   C-103/16, Porras GuisadoΣ (Issues of protection against dismissal due

to maternity in EU law and the significant lack of integration of the protection into Greek labour law – On

the occasion of the CJEU judgment of 18 February 2018 in case C-103/16, Porras Guisado), E

  (), (δabour δaw Review), pp. 395-411 et s.

245 CJEU C-1033/16, Jessica Porras Guisado v Bankia SA and Others, 22 February 2018; Paragraph 59 ΡArticle

10 of Directive 92/85 thus makes an express distinction between protection against dismissal itself, as a

preventative measure, and therefore, proper implementation of that article requires Member States to

establish such double protection.Σ Paragraph 65 Ρin order to ensure the faithful transposition of Article 10 of

Directive 92/85, and the protection of pregnant workers and workers who have recently given birth or are

breastfeeding from the risk of dismissal, Member States cannot confine themselves to providing, by way of

reparation, only for that dismissal to be declared void when it is notjustifiedΣ. Paragraph 64 ΡIn view of the

risk to the physical and mental state of pregnant workers, workers who have recently given birth or who

are breastfeeding, protection by way of reparation, even if it leads to the reintegration of the worker

dismissed and the payment of wages not received because of dismissal, cannot replace protection by way

of prevention.Σ

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wording Ρserious groundsΣ, in the sense of Article 672 CC (applying in the termination of

fixed-term employment relationships). According to the Greek case law, there is a Ρserious

groundΣ when one or more facts, objectively and according to good faith, make the

continuation of the employment relationship unbearable for the employer, irrespective of

any fault of the worker, the particular circumstances being taken into account. Examples

include poor performance of the workerΣs duties or non-compliance with the employerΣs

instructions, provided that this is not due to her situation246 or the closing down of the

business.247

The author of the survey acknowledges that, according to the existing Greek case law, a

collective redundancy (and, in general, economic/technical reasons) cannot justify the

dismissal of pregnant workers and workers who have recently given birth or are

breastfeeding. Thus the CJEU judgment in the said case is irrelevant. However, the author

expresses his fear for the future interpretation by case law of the Ρserious groundsΣ in such

dismissals. In view of the above, the author proposes that the Greek implementing

legislation should comply with its obligation to provide preventative protection against

such dismissals by assigning to the independent equality body (the Ombudsman) the role

of verifying through an opinion the existence of Ρserious groundsΣ prior to the realisation

of the dismissal. Such obligatory and legally binding opinions (albeit by other competent

administrative authorities) are provided in the Greek legal order as a preventative

protection against dismissals of (i) trade unionists and (ii) people with disabilities or

members of families with many children who were placed in undertakings by the State.

5.1.2Other issues

A very interesting research project on ΡWork-life balance in the context of changing families

and labour market in GreeceΣwas carried out in 2016 by the National Centre for Social

Research, including a quantitative and a qualitative study.248The qualitative research

showed that the relationship between work and family life has been significantly influenced

by the new conditions imposed by the recent economic crisis. Seven years after the advent

of the crisis (2009-2016), Greek society has undergone a variety of changes which are

reflected in income, employment, state care services, and benefits and allowances

affecting those working in both the public and the private sector. In these circumstances,

the relationship between work and family life, as shown by the projectΣs case studies, has

suffered from the successive shocks of social transformations taking place during the crisis.

This is especially true for women professionals. In addition, key dimensions of gender

inequality which existed even before the recent economic crisis have also been prevalent.

Evaluating the results of the qualitative research in their totality, it seems that today, in a

Greece in a state of crisis, the relationship between work and family life is diverging ever

further from any prospect of reconciliation. Regardless of the profession, work-life balance

appears as a painful ΡdutyΣ, due to the long list of professional and familial responsibilities

people have to cope with. In the absence of supportive structures from the state and

amidst income shrinkage, the provision of external auxiliary services, both at work and in

the family, becomes extremely difficult. Instead, the memorandum policies adopted by

the state worsen the conditions for people exercising their professions. Existing policies

are, in practice, detrimental to the prospect of the reconciliation of work and family. In

some cases, these lead women to seek early exit strategies from their professions. In a

Greece in crisis, the studies reveal that the balance between professional and family life

for women has begun to tilt towards a return to the traditional role of women as mothers

and housewives, which goes against the emancipation won by women in the post-war era,

particularly in recent decades.

246 SCPC (Civil Section) Nos 308/2011, 622/2008.

247 Thessaloniki CA 47/1991.

248 Thanopoulou, M., Tsiganou, J. (2016), Gender in science without numbers Ν From academia to work-life

balance, Main results of case studies,     (σational Centre for Social

Research), Athens.

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5.1.3Overview of national acts on work-life balance issues

See above under 1.2 (List of main legislation transposing and implementing Directives),

2.1 (Constitution) and 2.2 (Gender equality legislation).

5.1.4Political and societal debate and pending legislative proposals

There has been no political and societal debate and no pending legislative proposals on

work-life balance issues, neither generally nor in the light of the new work-life balance

Directive recently adopted.249 However, the Ombudsman has submitted his proposals250in

view of the new Directive 2019/1158251 which has to be implemented by 2 August 2022.

5.2Pregnancy and maternity protection

5.2.1Definition in national law

Article 2 of Decree 176/1997 transposing Directive 92/85/EEC, as amended by Decree

41/2003,252 defines the concepts of a pregnant worker, a worker who has recently given

birth and a worker who is breastfeeding. It reads:

•Pregnant worker: ΡAny working woman who is pregnant and who has informed her

employer of her condition, provided that this is required for taking a positive measure

in her favour.Σ The provision of pregnant worker copies the Directive, but the last

phrase extends the definition, in line with CJEU case law and Greek case law which

does not require disclosure of the pregnancy as a condition of protection.253

•Worker who has recently given birth: ΡAny working woman who is at the stage after

confinement up to a period of two months and who has informed her employer of

her condition, provided that this is required for taking a positive measure in her

favour.Σ

•Breastfeeding worker: ΡAny working woman who is breastfeeding for a period up to

one year after confinement and who has informed her employer of her condition,

provided that this is required for taking a positive measure in her favour.Σ

The definitions of Ρworker who has recently given birthΣ and Ρbreastfeeding workerΣ also

copy the Directive with the same addition. ΡPositive measuresΣ mean e.g. maternity leave

or those measures required by Articles 4-7 and 9 of the Directive.

5.2.2Obligation to inform the employer

According to the Greek case law, a pregnant worker does not have to inform her employer

of her condition, except in the case of positive measures. In view of this, if an employer

dismisses a pregnant worker without being aware of her condition, once informed of the

pregnancy the employer must adopt measures in order to cure the nullity of the dismissal

of the pregnant worker (i.e. reinstatement).254

249 Directive (EU) 2019/1158/EU of the European Parliament and of the Council of 20 June 2019 on work-life

balance for parents and carers and repealing Council Directive 2010/18/EU.

250Greek τmbudsman, Ρ–2019Σ (Equal treatment – Special report 2019) pp.

94-95, available at: https://www.synigoros.gr/resources/docs/ee_im_2019_el.pdf.

251 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life

balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188, 12.7.2019, pp. 79-

93.

252 Decree 41/2003, OJ A 44/21.2.2003.

253 SCPC (Civil Section) Nos. 954/2018, 433/2012; Athens CA 644/2017.

254 SCPC (Civil Section) No. 954/2018.