Balancing it out – Family and Employment

The recent increase in maternity leave has created strong views, unsurprisingly divided into two broad categories: those who insist that the increase of the maternity leave to 18 weeks was essential and inevitable, and those who feel that the extended maternity leave will prove to be too much of a financial burden for the employer.

The guiding principle of maternity leave – as explained in ILO conventions on the subject – is based on health considerations, whereas the extension of such leave is often quoted as being necessary because the mother needs to spend time with her child after childbirth, which, in itself is more of a work-life balance matter than a health issue.

The Increase in Maternity Leave

The increase in the length of maternity leave was raised a while back and the proposals were originally introduced on October 3rd 2008 by the European Commission. The two proposals by the European Commission were to increase maternity leave from 14 to 18 weeks, and the second was to improve the situation of self-employed women by providing equivalent access to maternity leave, on a voluntary basis. For the purpose of this article, I will be focusing on the first proposal – that of the increase in maternity leave.

In June 2011, the European Parliament wanted to go a step further when it proposed maternity leave of 20 weeks that is fully remunerated as well as the introduction of two weeks of paternity leave. When called to vote, the Council of the European Union and the European Parliament did not manage to reach an agreement on these proposals.

In terms of Maltese law the entitlement to maternity leave is governed by the Protection of Maternity (Employment) Regulation, Subsidiary Legislation 452.91. The more significant and awaited amendment was by virtue of Legal Notice 503 of 2011, which legal notice introduced the extension to maternity leave.

Prior to the 2011 legal notice, a pregnant employee was entitled to apply to her employer in writing (at least 4 weeks before the maternity leave begins) for maternity leave for an uninterrupted period of 14 weeks with full wages.

If the employee was unable to avail herself of the maternity leave entitlement before the date of birth, such remaining balance of entitlement could be availed of after the child’s birth. A pregnant employee was entitled to time-off without loss of pay or any other benefit, in order to attend ante-natal examinations.

By virtue of Legal Notice 503 of 2011, the mentioned uninterrupted period of fourteen weeks increased to sixteen weeks with effect from 1st January 2012 and to eighteen weeks with effect from 1st January 2013.

Employees who shall be on maternity leave on 1st January 2013 shall be automatically entitled to enjoy maternity leave for a period of eighteen weeks, even where such maternity leave commenced before 1st January 2013.

The Regulations provide that an employee on maternity leave shall be entitled to the first fourteen weeks of maternity leave with full wages paid by the employer, but if the employee chooses to avail herself of any additional maternity leave beyond the fourteen weeks (up to the eighteen), the employer shall not be obliged to pay any wages in respect of maternity leave which goes beyond the aforementioned fourteen week period.

Therefore the additional period availed of by the employee beyond the fourteen weeks, is deemed to be a benefit in terms of the Social Security Act paid by the Government.

The Rights of the Employer and the Employee before and after Maternity Leave

The Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) states that where the mother does not resume work after the birth of her child or, having resumed work, terminates her employment without good and sufficient cause within six months of the resumption of work she is liable to refund the wages received during the maternity leave availed of.

When an employee is on maternity leave, the employee is deemed to have been in employment and during any such absence she is still deemed to be entitled to all rights and benefits which may accrue to other employees of the same class or category of employment at the same place of work. Such opportunities include the right to apply for promotion opportunities at her place of work and the entitlement to return to the same job (when this is no longer possible for a valid reason, to equivalent or similar work which is consistent with her original contract of employment). However, during the period of maternity leave the employee has no right to any bonus or allowance related to performance or productivity.

Moreover in terms of the Protection of Maternity (Employment) Regulations an employer may not dismiss a pregnant employee, an employee who has recently given birth or a breastfeeding employee, as of:

• the date in which such employee formally notifies the employer of her pregnancy to the end of her maternity leave; or
• during any period of special maternity leave, because of her condition or because she avails herself of any rights in accordance with her entitlements at law.  

An employer may however dismiss such an employee during her probationary period, on grounds of redundancy or if there is good and sufficient cause for such dismissal.  

In cases where there is good and sufficient cause to dismiss the employee, the employer must cite duly substantiated grounds for her dismissal in writing in her notice of termination and send a copy of such notice to the Director responsible for Employment and Industrial Relations. The same would be applicable in the case when a pregnant employee would be dismissed during probation. If the employer fails to give written reasons for dismissal at the time of dismissal or if the employee considers that any reason given by the employer is unjustified, and that she considers that the dismissal was unfair, the employee may present a complaint of alleged unfair dismissal before the Industrial Tribunal within four months from the date of the dismissal. It is important to note that in the last two scenarios, the onus of proof is on the employer to prove that the employee was dismissed for a good and sufficient cause, failure of such proof is considered by the Tribunal as an inference that the dismissal was indeed related to the employee’s pregnancy.

In the case of a pregnant employee who is in her probationary period, if the probationary period has not been exhausted on the date when the pregnant employee is to start her maternity leave, the probationary period shall be deemed to have been automatically suspended on the commencement of the maternity leave for the whole period of maternity leave.  Any remaining probationary period shall thereafter continue to run upon her return to work following the end of the maternity leave.

If a pregnant employee or an employee who has recently given birth or who is breastfeeding is granted special maternity leave before the probationary period has been exhausted, the probationary period shall be considered to have been automatically suspended for the duration of the special maternity leave and shall, only start to run again upon her return to work.

Leave for Parents

Maltese law does not cater specifically for paternity leave, but provides for one day of special leave as birth leave, and parental leave of up to 4 months (in line with Council Directive 2010/18/EU of 8 March 2010), however such leave will be unpaid.

The following is the breakdown of leave which may be availed of by parents.

Urgent family leave

15 hours per year with full pay-deductible from vacation leave entitlement.

Urgent circumstances covered would include accidents to members of employee’s immediate family, sudden illness or sickness requiring the presence of the employee and presence during births and deaths of members of the employee’s immediate family.

Special Leave

Every employee is entitled to the following minimum periods of special leave, in addition to the vacation leave allowances:

1. 1 working day of bereavement leave;
2. 1 working day of birth leave;
3. 2 working days marriage leave;
4. up to 1 year of injury leave;
5. jury service leave for as long as necessary.

Parental Leave

Unpaid leave for a period of four months until child turns 8, which must be availed of in periods of one month each. This can be availed of by both parents on the grounds of birth, adoption, fostering or legal custody of a child.

Maternity Leave

Paid leave for a period of eighteen weeks for the female employee.

Parents and employers are encouraged to agree how (parental) leave will be taken collectively, to ensure continuity and that the rights of both employee and employer are respected.

Conclusion

In Malta, the justification for employers to pay the maternity leave is based on the principle that the employer will benefit from the experience and productivity of the employee on her return to work. Therefore if the employee will no longer be obliged to work after giving birth, then the obligation of employers to pay maternity leave should also be removed, as this payment becomes a social benefit.

It is interesting to note how family friendly measures are at the top of the priority list in order to safeguard the interest of the employees and the ‘family institution’. One must also bear in mind that our law and, in turn, the Industrial Tribunal lean more towards the protection of the rights of the employee and not the employer.

Therefore, the contention that the rights of the employer are not safeguarded and protected to the same extent as the employee’s is a legitimate one, and what the legislator tends to overlook is the risk factor undertaken by entrepreneurs to keep their undertakings viable with the burden of such social costs. The increase in maternity leave has been perceived by some employers as somewhat one-sided in that it was not counter-balanced by an extension in the minimum period that an employee returning from maternity leave is obliged to work in order to retain the right to the paid maternity leave.

After all, how is social justice being achieved when an employer who pays an employee for not working for 18 weeks is given the questionable consolation that the employee is bound to return to employment for a minimum period of six months after her return? Extending this period to one year could have gone some way towards alleviating this grievance.