Maistrellis v Minister for Justice [2015] IRLR 944 CJEU

Atkinson, JL (2017) Maistrellis v Minister for Justice [2015] IRLR 944 CJEU. Northern Ireland Legal Quarterly, 68 (1). pp. 95-98. ISSN 0029-3105

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Abstract

The Shared Parental Leave Regulations (Northern Ireland) 2015 (‘the Regulations’) came into force on 15 March 2015 for the parents of children born or placed for adoption on or after 5 April 2015. The Regulations create Shared Parental Leave (‘SPL’), which allows eligible parents to share up to 50 weeks of leave (and, if entitled, up to 37 weeks of Statutory Shared Parental Pay) in the first year of their child’s life1. The Regulations replicate law which is already in force for the rest of the UK2. The aims of the legislation were to attempt to address the gender imbalance in parenting by encouraging more fathers to take extended leave to care for their child and establish a more flexible scheme to enable them to do so. This case note will argue that due to the eligibility requirements which govern SPL, the scheme breaches EU law, more specifically the Parental Leave Directive3 and the Equal Treatment Directive4. Both directives have been revised from their original versions. The revised Parental Leave Directive entitles each parent to a period of at least 4 months leave, at least one of which should be on a non-transferable basis5. This means that one month of the leave period should be reserved exclusively for one parent, and if it is not taken, it is lost. This provision will be considered again below. The Equal Treatment Directive prohibits discrimination on grounds of sex in relation to hiring employees, their conditions of employment including pay, access to training and promotion and any action taken to dismiss them6. The case upon which a legal challenge could be founded is Konstantinos Maistrellis7, recently heard before the Court of Justice of the European Communities (‘CJEU’).