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: Natalie Videbaek Munkholm
• Pages: 28-44

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

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

2019/1158)38

5.1 General (legal) context

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

The Danish Association of Masters an d PhDs conducted an analysis39 of the work-life

balance of 4 870 of their members, and the analysis came to the followin g conclusion:

- Those who are dissatisfied with their jobs have a significantly worse opportunity f or

work-life balance than those who are satisfied with their jobs. F or example, several

of those dissatisfied cannot choose their own working hours and are expected to b e

available outside working hours.

- There is also poor work-life balance among stressed versus non-st ressed members.

The significant differences indicate that work-life balance should be prioritised to ensure

job satisfaction and reduce stress.

5.1.2 Other issues

There are no other issues.

5.1.3 Overview of national acts on work-life balance issues

Consolidation Act 67/2019 on Entitlement to Leave and Benefits in the Event of Childbirth

(Barselsloven).

Consolidation Act No. 1084/2017 on the Working Environment (A rbejdsmiljøloven).

5.1.4 Political and societal debate and pending legislative proposals

On 26 June 2017, the Minister for E mployment wrote to the European Commissioner for

Employment, Social Affairs, Skills and Labour Mobility on behalf of the Danish Parliament

to state that Denmark did not support the Commission’s proposal on work-life balance

(COM (2017) 253 final).40

The Directive must be implemented by 2 August 2022. It could produce a significant

increase in men taking parental leave, which would in turn have a positive effect on th e

gender wage gap inter alia by decreasing the reduction of women’s income as an effect of

childbirth. A recent report touched upon these positive effects. However, in the first

statements from the Minister of Equalit y on the implementation of the Directive, the plan

was to apply for an exemption from the requirement of earmarked maternity leave.

However, the opinion of the Minister on the topic later changed and the planned application

was abandoned.

38 See 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

https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-

dismissal-and-unfavourable-treatment-pdf-962-kb and 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

https://www.equalitylaw.eu/downloads/3631-reconciliation.

39 The report is available here: https://dm.dk/media/35344/derfor-er-work-life-balance-saa-vigtigt.pdf.

40 https://www.ft.dk/samling/20161/almdel/LIU/bilag/103/1773465.pdf.

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Think Tank Europe has produced a report on the Danish position on the work-life balance

proposal from the Commission.41

The Danish Government has indicated that it would like to encourage fathers to take more

parental l eave, but currently the Government has no policy initiati ves ensuring a more

gender-balanced distribution between parents’ caring responsibilities.

5.2 Pregnancy and maternity protection

5.2.1 Definition in national law

There is no definition of a pregnant worker in Danish legislation.

5.2.2 Obligation to inform employer

The pregnant employee is obliged to inform the employer of the stipulated date of birth

with three months’ notice according t o Section 15 of the Consolidation Act No. 67 of 25

January 2019 on Entitlement to Leave and Benefits in the Event of Childbirth

(barselsloven). In addition, a mother who has exercised her right to a leave of absence

according to Section 7 of the Act on Entitlement to Leave and B enefits in the Event of

Childbirth, must give the employe r notice of th e date of th eir return to th e job no later

than eight weeks after confinement.

5.2.3 Case law on the definition of a pr egnant worker, a worker who has recently given

birth and/or a worker who is breastfeeding

There is no case law on the definition of a pregnant worker.

5.2.4 Implementation of protective measures (Article 4-6 of Directiv e 92/85)

The employer must ensure safe an d healthy working conditions and all recogni sed health

and safety norms and standards must be followed.

According to the Public Order on the Performance of Wo rk 559/2004, Section 8(1), the

employer must take into consideration the employee’s age, experience, the specific tasks

of the employee’s position and other qualifications. According to Subsection 2, particularly

sensitive groups of workers, including pregnant and breastfeeding employees must be

protected against dangers that might affect them. The employer is required to assess th e

risks for pregnant and breastfeeding women (Subsection 3), and if there is a risk,

Subsection 4 obligates th e employer to take necessa ry steps to avoid it, which according

to Subsection 6 can consist of assign ing the pregnant or breastfeeding employee other

tasks or functions.

5.2.5 Case law on issues addressed in Articles 4 and 5 of Dir ective 92/85

The Maritime and Commercial High Court issued a ruling in three combined cases,42 which

all concerned pr egnant employees working at dental clinics, where con cerns were raised

with regard to the health and safety of these employees due t o inter alia the possible

exposure to nitrous oxide. The employees were either sent home by the employer or on

sick leave and the primary issue of the dispute was whether or n ot they were ent itled to

their full salary as sick pay. In the ruling F -44-98, the Maritime C ourt expanded on the

Employers’ duties towards pregnant workers. The court stated:

41 Think Tank Europe (2017), ‘EU Foreslår Øremærket Barsel, Men Danmark Stritter Imod’,

http://thinkeuropa.dk/sites/default/files/.

42 Maritime Court rulings F-44-98, F-45-98 and F-46-98 of 3 March 2003.