EU decisions may point the way to further rebalancing of parental rights

At first glance, two rulings of the European Court of Justice published on 16 July have little to do with the UK – or with each other for that matter. But on closer examination they could both provide the move towards greater gender equality with added impetus, not only in this country but elsewhere in Europe.

One decision is about Greek regulations on paid parental leave, which is available to male judges only if their wives are also working. Unsurprisingly, this was found to be in breach of both the Parental Leave Directive (which concerns the right to unpaid parental leave) and the more broadly based Equal Treatment Directive. In the UK unpaid parental leave is available on an equal basis to parents of both sexes. However the same cannot be said of shared parental leave, which is available only to fathers where the mother is entitled to maternity leave or maternity allowance in her own right. That in turn depends on her having been economically active before the baby was born.

The other decision is not an employment case; it is about race discrimination in the way electricity had been supplied to city districts in Bulgaria with a high Roma population. To avoid tampering with the electricity supply, meters in these districts were located on high poles rather than at an accessible height. The ECJ has ruled that these arrangements could be challenged by a resident in one of these districts who was not herself of Roma origin. That was because, in its view, the definition of indirect discrimination in the Race Directive (which extends to goods and services as well as employment) is wide enough to offer protection to all people affected by a discriminatory policy, criterion or practice. The ECJ is very likely to adopt a similar approach to EU directives dealing with other discrimination strands, which adopt the same definition of indirect discrimination.

It follows that it may now be possible for indirect discrimination claims to be brought not only by members of the protected group in question but by all people who are disadvantaged. In the UK the most obvious example would be men with caring responsibilities who are adversely affected by inflexible working conditions which have a disproportionate impact on women, but which also disadvantage a minority of men. The definition of indirect discrimination in the Equality Act would on the face of it would preclude such a challenge, but it is now arguable that British courts will need to interpret this definition more broadly in the future

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