The right to parental leave in order to reconcile family and professional life is regarded by the European Union has a fundamental social right. It is enshrined in Article 33, §2 of the Charter of Fundamental Rights of the European Union as well as in the Directive 2010/18 of 8 March 2010 implementing the revised Framework Agreement between European social partners on parental leave (hereafter: “the Framework Agreement”).
According to Clause 2 of the Framework Agreement, every worker has an individual right to parental leave of at least 4 months on the grounds of the birth or the adoption of a child to take care of that child until a given age up to 8 years.
In Belgian law, the main principles of parental leave have been transposed in Collective Labour Agreements 64 and 64bis. Parental leave is granted in addition to maternity leave (15 weeks) and paternity leave (10 days).
On 7 September 2017, the European Court of Justice delivered an interesting judgment related to a worker’s rights when returning from parental leave (clause 5 of the Framework Agreement). It is an opportunity to examine the applicable rules in this field.
First, the worker has the right to return to the same job or, if it is impossible, to an equivalent or similar job consistent with his/her employment contract or employment relationship. This means, notably, that:
- If an assessment of the workers is undertaken in the context of the abolishment of a post, the method for assessing employees must not place workers who have taken parental leave in a less favourable situation than those who have not taken parental leave (ECJ, 20 June 2013, C-7/12);
- If a worker is promoted on probation, but does not take up his/her duties during the probationary period, being on parental leave, the probationary period must be extended (ECJ, 7 September 2017, C-174/16).
Secondly, the worker retains the rights acquired or in the process of being acquired on the date on which parental leave started. That concept covers all the rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts. This includes, for example:
- The right to paid annual leave (ECJ, 22 April 2010, C-486/08);
- For a worker employed on a full-time basis, the right to have the compensation for dismissal due to him/her determined on the basis of a full-time salary. The employer may not determine compensation on the basis of the reduced salary the worker is receiving by reason of parental leave (ECJ, 22 October 2009, C-116/08);
- The rights resulting from the provisions establishing the conditions of access to a higher lever of the professional hierarchy (such as the right to obtain potential definitive promotion to a managerial post by carrying out a probationary period) (ECJ, 7 September 2017, C-174/16).
It is also important to note that workers, when returning from parental leave, may request changes to their working hours and/or patterns for a set period of time (clause 6 of the Framework Agreement). In Belgium, this period is set to 6 months (Article 14, §2 of CLA 64).