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 | Nathalie Wuiame |
| Pages | 27-42 |
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5 Pregnancy, maternity, and leave related to work-life balance for workers
(Directive 92/85, relevant p rovisions of Directives 2 006/54, 2010/18 and
2019/1158)56
5.1 General (legal) context
5.1.1 Surveys and reports on the practical difficulties linked to work -life balance
In 2008, the Institute for the Eq uality of Women and Men commissioned a study on
discrimination on the ground of pregnancy in order to assess the complain ts it received in
a broader context and to estimate the extent of the phenomenon in Belgium.
In 2017, the Institute decided to update the study.57 The conclusions were worrying: three
out of four women workers have faced at least one form of discrimi nation, prejudice,
unequal treatment and u npleasant tr eatment b ecause of their pregnancy or maternity;
22 % of pregnant workers faced di rect discrimination and 69 % suff ered indirect
discrimination. These figures corroborate the conclusions that can be drawn from th e
complaints the In stitute receive s. In 2016, the vast majority of rep orts of employment
discrimination to the Institute came from w omen (69 %) and 38 % of reports relating to
employment concerned discrimination linked to pregnancy and maternity. Women may be
discriminated against at all stages of the employment process: from recruitment and
selection to the non-extension of their fixed-term contract and dismissal, as well as in their
conditions of employment. Few women dare to enforce their rights, often having
themselves integrated gender stereotypes and accepted the idea that pregnancy and
motherhood are obstacles to their careers.
Another survey, from the Family League (Ligue des familles) , found that eight out of t en
parents have difficulty reconciling work and family life and one in four workers sa y they
are on the verge of exhaustion. The most frequently expressed d emand by parents is a
collective reduction in working time. The Family League also proposes 'conciliation leave,'
which could be taken in hours rather than in days.58
5.1.2 Other issues
The leave system in Belgium is extremely complex (parental leave, time credit and career
break). The various types of leave all have different conditions of ac cess, duration and
rules of assimilation (to periods worked), formulas or amounts of allowance. This is
historically explained by the fact that new measures have been added to old ones without
harmonising the regulations with different objectives (redistribution of work or
reconciliation of work and private life). Today these schemes are covered by different social
security schemes.
5.1.3 Overview of national acts on work-life balance issues
- Working Conditions Act of 16 March 1971.
- Consolidated Act of 14 July 1994 concerning healthcare and sickness in surance.
56 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.
57 Institute for the Equality of Women and Men (2017) Pregnancy at Work - Experiences of candidates,
employees and self-employed women in Belgium (Grossesse au travail. Experience de candidates,
d'employées et de travailleuses indépendantes en Belgique).
58 Family League (Ligue des familles), (2018) Comment adapter le monde du travail à la vie des parents?,
October 2018, available in French at https://www.laligue.be/Files/media/495000/495841/fre/2018-10-25-
enquete-travail-et-parentalite.pdf.
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- Employment Contracts Act of 3 July 1978.
5.1.4 Political and societal debate and pending legislative proposals
The system of time credit has recently been reviewed unfavourably for unmotivated leaves,
meaning leave taken without specifying the reason of the leave. This led to a drop in the
number of beneficiaries. Conv ersely, parental leave is increasing significantly. The
preferred formula is reducing working time by a fifth. It is in this type of formula that the
distribution between men and women is mo st balanced (for example, in the case of time
credit, 57 % of women and 43 % of men reduce their working hours by a fifth. These
figures are explain ed by the high number of men who choose a time credit at the end of
their career (60 % of men). Women remain the largest group of applicants for this type of
measure and the figures for career breaks (stable between 2008 and 2017) show a
proportion of 72 % of women.
The recommendation of the Institute for the E quality of Women and Men No. 2018-R/001
on the protection against discrimination against workers of both sexes with family
responsibilities endorses the integration of a new protected criterion against discrimination
relating to family responsibilities.59
5.2 Pregnancy and maternity protection
5.2.1 Definition in national law
There is no legal definition of a ‘pregnant’ worker, but protection of a pregnant worker
against pregnancy-related health risks and against dismissal is conditional on the worker
informing her employer of her pregnancy (Article 41bis and Article 40 of the Working
There is no definition of a worker who has recently given birth o r who is breastfeeding.
5.2.2 Obligation to inform employer
Article 40 of the Working and Condit ions Act of 16 March 1971 does not impose any form
on the information that must be given to the employer, nor does it even instruct the person
concerned to provide such information h erself. However, in t he event of a dispute, it will
be up to the worker t o prove that the employer was informed. Thus, the visible nature of
the pregnancy is sufficient to provide the employer with information.
5.2.3 Case law on the definition of a pregnant worker, a worker who has recently given
birth and/or a worker who is breastfeeding
Nothing to report.
5.2.4 Implementation of protective measures (Articles 4-6 of Directive 92/85)
Article 42 of the Working Conditions Act of 16 March implements protective measures
mentioned in articles 4 to 6 of the directive. The employer must take the necessary steps,
such as temporarily adjusting working conditio ns, moving the worker to another job or, if
there is no other solution, granting the worker temporary leave. So, if the employee must
be withdrawn from her usual tasks, and the employer cannot assign her to any other
activities, a ‘protection of maternity' leave is provided. When protection against health
59 Institute for the Equality of Women and Men (2018), Study on the gender dimension of parental leave, time
credit and career break. Available in French and Dutch at: https://igvm-
iefh.belgium.be/fr/publications/la_dimension_de_genre_du_conge_parental_du_credit_temps_et_de_linterr
uption_de_carriere.
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