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The DTI's current proposals to extend paternity rights highlight the disparity between the statutory rights of men and women to take time off to care for their children. A recent European Court of Justice (ECJ) decision has strengthened fathers' cause and men could take action in the English courts to enforce their rights under the Equal Treatment Directive.
Fathers may already be suffering from sex discrimination because they are not currently entitled to take an equivalent length of leave from work (paid or unpaid) to care for their children as that allowed to mothers. National legislation, which implemented the Equal Treatment Directive, may discriminate against men by excluding their entitlement to such leave. This is the main implication of the ECJ's decision in Land Brandenburg v Sass [2005].
While it is well intentioned and may improve employees' work-life balance, the DTI's proposal (published on 28 February 2005) to allow fathers to take part of the paid statutory maternity leave period (which only women are currently entitled to) by the mother 'transferring' it to the father reinforces the fact that fathers do not have equivalent rights to women.
Although there are objectively justifiable reasons for not allowing men to take some of the time off where the purpose is to allow women to recover physically from the birth, there is unlikely to be an objective justification for not allowing men to take an equivalent period of the statutory maternity leave, when the purpose is arguably only to care for the child.
The facts in the Sass case are not straightforward, but the implication of this decision for English law is twofold. First, in the UK, additional maternity leave for women only potentially sexually discriminates against men and therefore could be challenged through its inconsistency with European law (the Equal Treatment Directive). Second, Parliament may decide, if it agrees with the interpretation, to act to correct the position and grant male employees equal access to a period of leave equivalent to the six-months additional maternity leave.
In the UK, there are two different periods of maternity leave - ordinary maternity leave (OML) which is the first 26 weeks, followed by a further 26 weeks' additional maternity leave (AML). AML does not attract the same employment rights as OML.
If the primary purpose of OML is to allow the mother to recover physically from the birth in addition to caring for the
