(introduction...)

A guarantee for pregnant women and young mothers that they will not lose their job as a result of being pregnant, absent on maternity leave or because they have just had a child, is an essential element in maternity protection. Such a guarantee is an integral part of their entitlement to paid maternity leave. It is also an essential means of preventing maternity from becoming a source of discrimination against women in matters of employment. For this we need to ensure that the absence of the woman on maternity leave should have no adverse effects on her resumption and continuation of work at the end of her period of leave or on her entitlements under the employment contract, in particular those linked to seniority within the company (such as paid annual leave) or to length of service (such as retirement benefits).

Convention No. 103, like Convention No. 3 before it, absolutely prohibits dismissal of a worker during maternity leave or during any extension of such leave that may be necessitated by illness resulting from pregnancy or confinement.¹ The protection this provides is considerable, since it prohibits dismissal even under exceptional circumstances.² At the same time, the protection is limited, since it only covers the period during which the woman is on maternity leave, i.e. twelve weeks according to these Conventions, and during any extension of that leave. On the other hand, the Maternity Protection Recommendation, 1952 (No. 95), allows the possibility of extending protection against dismissal from the date when the employer has been notified of the pregnancy until at least one month after the end of the maternity leave.³

Nevertheless, neither Convention No. 103 nor Recommendation No. 95, which concern only the protection of women who are already employed, apply to the case of a woman seeking employment, which is undoubtedly the most important from the point of view of equality of opportunity and treatment between men and women. It is also the most difficult, since motherhood and the family responsibilities associated with it still strongly influence the image of women at work and may be used by employers as a criterion when selecting candidates for a particular post. The question is how to ensure that employers do not reject candidates of child-bearing age, who still bear the heaviest burden of family responsibilities and whose absence on maternity leave or for even longer periods of parental leave creates organizational problems for employers and in some cases also the financial burden of paying salaries during such leave of absence. These questions are all the more difficult in that they relate to a worker’s private life and to ways of protecting it and reconciling it with the demands of working life. The importance of these issues, which have only recently received serious attention, has not escaped legislators and social partners in different countries. In 1997, the ILO adopted and published a code of practice on the protection of workers’ personal data which stipulates that the processing of personal data should not have the effect of the unlawful discrimination in employment or occupation⁴ dealt with in the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). This Convention plays a major part in promoting equality and aims to guarantee that every job application should be considered fairly, without discrimination based on various criteria such as sex, civil or marital status, family situation, pregnancy or confinement. The code, when read in conjunction with the Convention, sheds new light on the discrimination which would result, for example, if candidates were asked at the time of recruitment whether or not they were pregnant.

Protection against dismissal

Absolute prohibition against dismissal during maternity leave

An absolute prohibition against dismissal of a worker during pregnancy leave - or to give notice of dismissal during that leave - is found in the legislation of a certain number of countries and reflects the provisions of Convention No. 103. While it is not possible here to go into an exhaustive analysis of the relevant case law in different countries which alone would give a true idea of the scope of statutory provisions, such a prohibition appears to apply in the following countries: Bahrain, Belize, Benin, Botswana, Burkina Faso, Burundi, Cambodia, Chad, Congo, Cd’Ivoire, Djibouti, Fiji, Gabon, Ghana, India, Israel, Lesotho, Libyan Arab Jamahiriya, Madagascar, Mali, Mauritania, Morocco, Niger, Nigeria, Senegal, Solomon Islands, Sri Lanka, Uganda and Uruguay.

In addition to this prohibition against the dismissal of a worker during maternity leave, a number of countries have adopted provisions which extend protection from dismissal beyond the period of absence on maternity leave, i.e. the period of pregnancy, for a certain period following a worker’s return to work. It should be remembered that the prohibition against dismissal of a worker during maternity leave, even if it is absolute, provides only a limited protection: it provides no protection against dismissal during pregnancy, or, for example, following the worker’s return to work after a period of maternity leave.

Prohibition against dismissal for reasons connected to maternity

The protection against dismissal under Convention No. 103 appears to be one of the elements in maternity protection which have been subject to most modifications in member States where the protection provided in this area diverges increasingly from the spirit of the Convention. There are two reasons for this. The first is historical and is based on the fact that Convention No. 103 was adopted more than four decades ago at a time when protection of workers as a group from dismissal was still undeveloped and applied only to particular categories regarded as especially “at risk” and in need of special guarantees, such as women on maternity leave or trade union representatives. The second reason, which at the time was not clearly articulated, is closely connected to a growing insistence that maternity protection is a precondition of genuine equality of opportunity and treatment for men and women.⁵ Two examples illustrate these developments. One is the adoption by the International Labour Conference in 1982 of the Termination of Employment Convention, 1982 (No. 158). Before that date, the question had only been addressed by a Recommendation adopted in 1963, 11 years after the adoption of Convention No. 103.⁶ The other concerns developments in British legislation as a result of amendments introduced in 1994, particularly following European Directive 92/85. These amendments constitute a fundamental change in the legal approach not only towards protection against dismissal but also to the question of what constitutes sex discrimination. Since those amendments were made, any dismissal of a woman in the United Kingdom for reasons connected with pregnancy has been regarded as wrongful and dismissal of a woman merely because she is pregnant now also appears to constitute discriminatory treatment based on sex, without any requirement for comparison with a man, as had been the case in the past.⁷

Over the years, national legislation and practice, in particular under the influence of case law, have evolved in many countries so as to extend security of employment during maternity leave to encompass a broader protection covering pregnancy and the period following the birth. This has also altered the character of the protection given, which has lost its absolute character and, in accordance with general provisions governing termination of employment, allows dismissal for reasons regarded as legitimate and unconnected with maternity, such as misconduct or failure on the part of the worker to honour obligations under the employment contract, cessation of activity by the enterprise, force majeure, normal expiry of the employment contract or completion of the work for which the worker was recruited.

Countries which allow dismissal for reasons regarded as legitimate and not connected to maternity include the following: Austria, Belarus, China, Ecuador, El Salvador, France, Hungary, Indonesia, Italy, Republic of Korea, Liechtenstein, Madagascar, Malaysia, Malta, Mozambique, Namibia, Netherlands, New Zealand, Pakistan, Panama, Poland, Romania, Russian Federation, Saudi Arabia, Singapore, Swaziland, Sweden, Syrian Arab Republic, Venezuela and Viet Nam. It is thus an established principle, formulated in a variety of ways, in many countries that a woman who is pregnant, absent on maternity leave or has resumed work after a period of maternity leave can be dismissed only for a valid reason not connected with her condition, absence on leave, or the fact that she is nursing a child or is a young mother. This is the approach adopted in Convention No. 158, according to which pregnancy, absence from work during maternity leave and family responsibilities do not constitute valid reasons for dismissal.⁸ The European Directive 92/85 for its part calls on Member States of the European Union to take the necessary measures to prohibit dismissal of workers during the period from the beginning of their pregnancy to the end of the maternity leave, “save in exceptional cases not connected with their condition”.⁹

If protection against dismissal is to be effective, it must also cover the period following the worker’s return to work. This protection is the subject of special provisions in different countries, and the actual period of protection varies considerably. In China, Haiti and Romania, the period of protection corresponds to the nursing period, which is not precisely defined. The period of protection is 30 days following maternity leave in Belgium and the Republic of Korea, 12 weeks following the birth in Cd’Ivoire and Luxembourg, three months following the end of maternity leave in Cyprus, 16 weeks following the birth in Switzerland, four months following the birth in Austria, Ethiopia and Germany, five months in Brazil, six months in Hungary, nine months in the Lao People’s Democratic Republic, one year following the birth in Afghanistan, Angola, Bolivia, Greece, Mozambique, Somalia, Venezuela and Viet Nam, and 15 months in Mali and Senegal. The period is two years in Mongolia and three years in Belarus and Ukraine. In other countries, protection from dismissal during the period following the worker’s return to work after a period of maternity leave is justified on grounds of family responsibilities, which do not constitute a valid reason for dismissal under the terms of Convention No. 158.

Statutory protection is obviously one aspect of the problem. The real issue here, as always in matters of termination of employment, is to ensure in practice that a woman may only be dismissed for a reason not connected with pregnancy, maternity leave or for having a young child. Labour courts have a crucial part to play in ensuring that statutory provisions are respected and in assessing the validity of reasons given by employers and their possible connection with maternity. Disputes appear to be common.¹⁰

Labour courts are a last resort and various other means exist to ensure that protection from dismissal is actually implemented. These most commonly include provisions obliging the employer to state in writing the reasons for the dismissal, as required by the European Directive 92/85 and the national legislation of most member States of the European Union; placing the onus of proof on the employer; and an obligation to notify or request prior permission from the competent authority (works inspectorate or works council or committee). That is the case in Colombia, where dismissal may be authorized only for reasons set out in the Labour Code. In Guatemala, authorization must be given by an industrial tribunal, in Chile by a judge and in Israel by the Ministry of Labour. Following amendments to legislation in Portugal in 1995, dismissal of a pregnant woman or a woman who has just given birth to a child are subject to the approval of the Commission for Equality in Employment and Occupation, a tripartite body under the Ministry of Employment and Social Security which must give its decision within 30 days of the case being submitted. Protection may also involve deterrent measures. In Ireland, for example, where dismissal connected with pregnancy, confinement or nursing constitutes wrongful dismissal and is prohibited, severe statutory penalties exist and the worker concerned may be reinstated or awarded compensation amounting to two years’ gross salary.

In Belgium, in the event of unlawful dismissal, a special lump sum equivalent to six months’ gross salary is paid, in addition to severance pay. In Finland, compensation for wrongful dismissal may be as much as 24 months’ gross salary. In Sweden, dismissal on grounds of pregnancy may also constitute discriminatory dismissal prohibited by legislation on equality between men and women.¹¹

Finally, in certain countries legislation protects women from any wrongful dismissal connected with maternity by expressly stipulating that a worker may not be dismissed for reasons of reduced productivity during pregnancy. This is the case in Greece and Honduras.

In conclusion, it is clear that cases of dismissal do occur and that consideration must therefore be given to the effects of dismissal for legitimate reasons such as the bankruptcy or cessation of activity of an enterprise, or serious misconduct by the worker just before or during the period of maternity leave.¹² A distinction must be drawn here between the situation of a woman who meets the conditions of eligibility for maternity benefits under a social security or insurance scheme and that of a woman who is not eligible or not covered by such a scheme, either because she is excluded for some reason or because no such scheme exists and any leave benefits are paid by the employer. In the first case, dismissal will normally have no effect on the payment of benefits which the worker will receive during her leave. The second situation appears more precarious. Nevertheless, provisions exist in certain countries to ensure that the worker’s wages continue to be paid. Thus, in Botswana, legislation stipulates that the dismissal does not affect the employer’s obligation to continue payment of wages.

Entitlements under the employment contract

As is the case with any justified leave of absence, the right of a worker to reinstatement in her former work or “equivalent work paid at the same rate”¹³ is of crucial importance for a woman wage-earner who has just had a child. This right is all the more important given that the traditional pattern, according to which women stop work after the birth of their children in order to care for them and return to work once that task is finished, is increasingly outdated. Investigations have shown that a growing number of women are returning to work immediately after the birth of a child. In 1988 in the United Kingdom, for example, this was the case with 45 per cent of women who had worked during pregnancy.¹⁴ According to a more recent study of mothers of newborn babies which aimed to measure the effects of reforms in statutory maternity protection in 1994, 92 per cent of the women intended to return to work after their maternity leave.¹⁵ In Finland, the Netherlands and Sweden, the majority of people entitled to parental leave - mainly women - return to work after the period of leave.¹⁶ The situation varies according to the country, the proportion of women who are wage-earners and the number of children, and also according to the availability of child-care services, part-time work opportunities or other ways of reconciling work and family responsibilities. For example, the proportion of women returning to work after the birth of a child is 50 per cent in Germany and Spain, 33 per cent in Austria, 78 per cent in Italy and 80 per cent in France.¹⁷ In Germany in 1987, that proportion was 80 per cent for single mothers and two-thirds for mothers bringing up two children. Whatever the actual proportion of women returning to work following the birth of a child, it appears to be growing everywhere.

National legislation in a number of countries also takes account of cases of mothers who for one reason or another do not wish to return to work, or are unable to do so because existing child-care facilities are inadequate (for example), by allowing them to resign without notice during pregnancy or during the nursing period.¹⁸ This is the case in several French-speaking countries of Africa (Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cd’Ivoire, Democratic Republic of the Congo, Djibouti, Gabon, Madagascar, Mali,¹⁹ Niger, Rwanda and Senegal²⁰). Such provisions may be useful to women wage-earners who wish to take a break from paid employment but this is not the main problem facing them in this area. Of much greater importance is effective protection against termination of employment by the employer.

Reinstatement of a worker in her former work

The right of a woman to return to her work after a period of maternity leave is usually implicit in the leave entitlement itself, since the interruption is of a temporary nature no different from annual leave which does not require specific statutory provisions, although such provisions are found in the legislation of several countries (for example, Comoros and Mali). Elsewhere, the right of a woman to return to her former work in the enterprise is stated explicitly. This is the case in Bolivia, Brazil, Colombia, Cuba, Dominica, Ireland and Mongolia. In Mexico and Spain, the worker’s post is reserved for her for one year following the birth of a child. In France, a woman’s right to return to her previous work is expressly guaranteed if she has to be transferred to other work during pregnancy. In Afghanistan, Bahamas, Barbados, Finland, Luxembourg, Malta and Swaziland, the woman has the right to return to her own post or an equivalent post. In Costa Rica, the woman can be reinstated in her previous work or in a position suited to her capacity and competence, provided that the remuneration in the latter case is identical.

The right to reinstatement in the post held before maternity leave recognized by British legislation is subject to certain exemptions. One concerns the case of small enterprises employing five workers or less, if it is not reasonably possible to allow the worker to return to her post or to offer alternative work under conditions not less favourable than those which would have applied had she not taken maternity leave. The other possible exemption applies when the employer cannot allow the worker concerned to resume her post because of a surplus of staff. Any suitable vacancy must be offered to the worker concerned. A new contract is then drawn up, provided that the post is suited to the employee and her capabilities and the conditions of employment are not significantly less favourable than those which would have applied in the case of a normal reinstatement to the original post.

In many countries, the worker’s reinstatement in her former work is automatic and she resumes her post at the end of her maternity leave. The entitlement may also be subject to certain formalities, such as prior notification, as in Grenada and Ireland.

In the absence of relevant statutory provisions, such formalities are sometimes defined in collective agreements, hi the Bahamas, for example, a collective agreement covering the hotel and catering trade stipulates that the employer must be notified of the worker’s intention to return to work within six months following the birth; failure by the worker to give such notification may be interpreted by the employer as meaning that she does not intend to resume work and gives the employer the right to terminate the employment. In certain cases, the right to resume work is subject to a medical certificate stating that the worker is fit to do so. A return to work following a longer period of absence, such as a period of parental leave, is sometimes subject to a longer period of notice.

However, not all women wage-earners enjoy the right of reinstatement in their former work. In the United States, the Family and Medical Leave Act allows an employer to refuse to reinstate certain high-salaried employees if this is deemed necessary to prevent serious economic prejudice to his activities. As noted in the case of the United Kingdom, even where a worker’s right to return to her former work or equivalent work is expressly guaranteed, there may be exemptions which limit the practical scope of the provisions.

Other entitlements under the employment contract

Whatever the importance of a woman wage-earner’s right to be reinstated in her previous work, and however effectively it may be recognized and applied, it is not in itself enough to prevent women’s procreative role from becoming an obstacle to the realisation of equality of opportunity and treatment. For this, it must be ensured that a woman’s absence on maternity leave and the extension of that leave does not result in the loss or reduction of entitlements and benefits under the terms of the employment contract, which would only exacerbate the often considerable differences between men and women wage-earners. Clearly, much remains to be done to achieve that goal, despite the measures already taken to make maternity leave count for the purpose of calculating seniority entitlements or other entitlements under the employment contract.

In many of the countries examined, maternity leave counts for the purpose of calculating employment benefits. This is the case, for example, in Costa Rica, Honduras, Jamaica, Madagascar and Portugal. In other countries, such as Belarus, France, Mexico, Nicaragua and Spain, specific provisions exist to ensure that maternity leave is counted for the purpose of calculating seniority entitlements. Some countries have adopted very detailed provisions in this respect. In Namibia, for example, the Labour Law of 1992 stipulates that a woman wage-earner does not lose any entitlements under her employment contract which were recognized on the day of her departure on maternity leave, whether those entitlements are linked to seniority, promotion criteria, or the benefits for which she was eligible under the terms of a medical or retirements scheme or fund.

In Algeria, Cd’Ivoire, Hungary and the Russian Federation, legislation stipulates that maternity leave must be included in the length of service used to determine both paid annual leave entitlement and the length of that leave. Under legislation in Madagascar, absence on maternity leave cannot be deducted from annual leave. In some cases, collective agreements fill any gaps left by legislation or step in to define the effect - or non-effect - of the legislation on employment entitlements. This is the case in Ghana with a 1995 collective agreement on pay increases for workers in commerce.

While entitlements linked to seniority, such as paid annual leave, appear to be widely recognised and guaranteed, the same clearly does not apply when it comes to certain other, no less important aspects, that are far more complex in not being automatically linked to seniority such as access to training and career development. It is unquestionably in these areas that women wage-earners are most disadvantaged by comparison with their male counterparts.

The preceding analysis highlights the general trends in national legislation and practice in the protection of women wage-earners against dismissal in relation to the standards established under Convention No. 103. The general trend is towards a broader protection covering not only a worker’s absence on maternity leave but starting from the beginning of her pregnancy and including the period following her return to work when she must fulfil family responsibilities. On the other hand, this protection is also relative, since it is possible, within the terms established under the provisions governing general protection against dimissal, to dismiss a woman employee for reasons not connected with maternity. This is where the difficulties begin, since it is no simple matter to ascertain that the dismissal is genuinely unconnected with the woman’s procreative role. It is a task that concerns employers, woman employees, their representative organizations, legislators and judiciaries in every country.

More difficult still is the task of ensuring, as indicated at the beginning of this chapter, that maternity does not become an obstacle to recruitment for the growing number of women who are obliged or wish to reconcile motherhood with paid employment. This is increasingly a matter for those working for equality between men and women at work and in society. A growing number of countries, especially the industrialized countries, are adopting measures to prevent any discrimination at the time of recruitment by prohibiting any action by employers aimed at ascertaining whether a candidate is pregnant. Nevertheless, much remains to be done if this laudable objective is to be achieved without indirectly harming the employment prospects of women of child-bearing age.