Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2020)
Maternity protection in employment law
Abstract
In the past decades, a lot of effort has been exerted worldwide to establish an equal treatment of women and men on the labour market. In that context, the ILO Maternity Protection Convention (No. 183, 2000) and the Revised European Social Charter have set valuable standards which serve as a guidance to countries on their way to support gender equality and prevent discrimination against women in employment relations. Accordingly, this paper considers two most important elements of maternity protection in employment law: a) protection against dismissal, including the guaranteed right to return to work for young mothers, and b) non-discrimination in employment in relation to maternity. In the first part of this analysis, the author argues that the subjective element (such as the employer's knowledge of employee's pregnancy) should not be considered as a decisive factor when the court determines if the dismissal on the grounds of pregnancy is unlawful. Furthermore, given the fact that women who return to work after maternity leave encounter a reduction in their wages on the grounds that they have lost the capacity to work that they would have retained and augmented if they had not been absent, it constitutes true discrimination on the ground of sex (gender). The author endeavours to offer suggestions de lege ferenda as to how this practice can be eradicated. In the second part of the analysis, in order to point to the need for effective protection of women in maternity, the paper aims to prove that certain indirect costs of the employer due to maternity leave or child care are one of the major causes of discrimination against women at work. Lastly, the paper supports the view that the drawbacks in legislations worldwide, which do not envisage equal rights to maternity and paternity leave for women and men after childbirth, also contribute to an unequal treatment of women and men at work.
