2019 EU Directive on work life balance

On 13 June 2019, the European Commission sought to further its initiative of addressing challenges faced by working parents and carers by adopting a new Directive of Work Life Balance.

The Work-Life Balance Directive (the “Directive”) originates from the EU Commission’s unsuccessful attempts to improve maternity rights across the continent. Currently, EU law provides for 14 weeks of maternity leave. Member States regularly blocked attempts to increase this entitlement, until the Commission changed tact and withdrew its proposals for maternity leave reform. Instead, it launched a new set of proposals designed to modernise the existing EU legal framework on family leave and flexible working. The result is the new Work-Life Balance Directive, which will need to be implemented by Member States by the middle of 2022.

The stated intention of the Directive is eloquently put within its preamble:

"Work-life balance policies should contribute to the achievement of gender equality by promoting the participation of women in the labour market, the equal sharing of caring responsibilities between men and women, and the closing of the gender gaps in earnings and pay... work-life balance remains a considerable challenge for many parents and workers with caring responsibilities, in particular because of the increasing prevalence of extended working hours and changing work schedules, which has a negative impact on women's employment. A major factor contributing to the under representation of women in the labour market is the difficulty of balancing work and family obligations. When they have children, women are likely to work fewer hours in paid employment and to spend more time fulfilling unpaid caring responsibilities. Having a sick or dependent relative has also been shown to have a negative impact on women's employment and results in some women dropping out of the labour market entirely. The current Union legal framework provides limited incentives for men to assume an equal share of caring responsibilities. The lack of paid paternity and parental leave in many Member States contributes to the low take-up of leave by fathers. The imbalance in the design of work-life balance policies between women and men reinforces gender stereotypes and differences between work and care. Policies on equal treatment should aim to address the issue of stereotypes in both men's and women's occupations and roles, and the social partners are encouraged to act upon their key role in informing both workers and employers and raising their awareness of tackling discrimination. Furthermore, the use of work-life balance arrangements by fathers, such as leave or flexible working arrangements, has been shown to have a positive impact in reducing the relative amount of unpaid family work undertaken by women and leaving them more time for paid employment."

The new Directive reflects increasing calls for fathers to take up their share of domestic parenting responsibilities.The implementation of this Directive is dependent on the circumstances in which the UK leaves the EU.

The Directive introduces key new rights across the EU:

• Fathers/equivalent second parents will be able to take at least 10 working days of paternity leave, paid at least at the level of sick pay. Member States can make paternity pay subject to a six-month service qualification, but paternity leave itself will be a day 1 right. The UK already provides a right to paternity leave and pay, but both rights are currently subject to a six month service requirement. To comply with the Directive, the service requirement for paternity leave (though not pay) would need to be scrapped.
• A strengthened right to parental leave. EU law already provides a right to four months unpaid parental leave but, under the Directive, two out of the four months parental leave will become paid and non-transferable from one parent to the other. The level of pay can be decided by Member States but must be set in such a way as to facilitate the take-up of parental leave by both parents. Workers will be able to request to take parental leave in flexible ways (the introductory text refers to requests to take the leave on a part-time basis, in chunks of leave separated by periods of work or in other flexible ways). The UK provides a right to non-transferable parental leave for each parent until the child is 18, but this leave is entirely unpaid. The UK also provides shared parental leave, some of which can be paid. If the UK had to comply with the Directive it is unclear what would happen to the existing shared parental leave scheme, although given its extremely low uptake, scrapping it does not seem beyond the realm of possibility. Shared parental leave is only available when the mother exchanges some of her maternity leave for it. Under the Directive, however, each parent would have an independent right to take paid parental leave.
• Introducing five days carers' leave per year. This will be unpaid, though the Commission had originally proposed the right to paid leave. A “carer” for these purposes means a worker providing personal care or support to a relative or person living in the same household and who is in need of significant care or support for a serious medical reason, to be defined in more detail by Member States. This right currently does not exist in the UK.
• Extension of the existing right to request flexible working arrangements to all working parents of children up to at least 8 years old, and all carers. A six month service qualification can be imposed by Member States. Workers will have the right to request temporary flexible working arrangements and the right to revert to their original working pattern at the end of the temporary period. The UK already gives all workers the right to request flexible working after six months’ service (this is not restricted to parents or carers). There is no rule against requests for temporary arrangements, although no explicit right to request them, so it is possible that the position would be made clearer if the UK had to comply with the Directive.

The full text of the Directive is available here.