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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5 Pregnancy, maternity, and leave related to work-life balance for workers
(Directive 92/85 , relevant provisions o f Directives 2006/54, 2010/1 8 and
2019/1158)242
5.1 General (legal) context
5.1.1 Surveys 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 n ot comply with the EU
acquis.244 On the one hand, the author of the survey makes reference to the distinctio n
made by the CJEU in the said judgment between protection against dismissal itself, as a
preventative measure, and protecti on, by way of compensation, from the consequences
of dismissal.245 The author finds that Greek legislation offers only protection from t he
consequences of dismissal in a reparatory way: if there is no serious ground thereto, the
dismissal is judicially declared nu ll 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 1 8
Directive 2006/54/EC; this is so because full back pay can be significantly reduced or even
eliminated in the following (not unusual) ca ses: (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 u ntil the issue of the final judgment should
be deducted f rom the back pay due; (iii) if th e 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 pr ovided 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.
244 Gavalas, 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 not justifiedΣ. 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 A rticle 672 CC (applying in the termination o f
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 b eing taken into account. Examples
include poor performance of the workerΣs duties or non-compliance with the employerΣs
instructions, p rovided that this i s not due to her situation246 or the closing down of the
business.247
The author of the survey acknowledges tha t, according to the existin g Greek case law, a
collective redundancy (and, in general, economic/technical reasons) cannot justify the
dismissal of pregna nt workers and wo rkers 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 und ertakings by the State.
5.1.2 Other issues
A very interesting research project on ΡWork-life balance in the context of changing families
and labour market in GreeceΣ was carried out in 2016 by the National Centre for Social
Research, including a q uantitative and a qualitative study.248 The 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 undergon e 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 f or 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, th e 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 responsibil ities
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 fami ly, becomes extremely difficult. Instead, the memorandum policies adopted by
the state worsen the conditions for p eople exercising their professions. Existing policies
are, in practice, detrimental to the prospe ct of the reconciliation of work and family. In
some cases, these lead women to seek early ex it strategies from their professions. In a
Greece in crisis, the studies reveal that the balance between professional and f amily 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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5.1.3 Overview of national acts on work-life balance issues
See above under 1.2 (List of main legislation transposing and implemen ting Directives),
2.1 (Constitution) and 2.2 (Gender equality legislation).
5.1.4 Political and societal debate and pending legislative proposals
There has been no political and societal debate and no pending legislative p roposals on
work-life bala nce issues, neither generally nor in the light of the new work-life balance
Directive recently adopted.249 However, the Ombudsman has submitted his proposals250 in
view of the new Directive 2019/1158251 which has to be implement ed by 2 August 2022.
5.2 Pregnancy and maternity protection
5.2.1 Definition in national law
41/2003,252 defines the concepts of a pregnan t 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 d efinition, in line with CJEU case law and G reek 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 w orking woman who is breastfeeding for a period up to
one yea r 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 an d 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 th e Directive.
5.2.2 Obligation 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 pregnan t 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.
250 Greek 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.
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