EU Directives on maternity leave: A misleading social risk approach and its unsatisfactory effects on both mothers and fathers

The EU Directives on maternity leave adopt a single social risk approach, focusing primarily on the protection of the delivering worker’s incapacity to work during pregnancy and after giving birth. They justify maternity leave on the basis of the vulnerability of these workers and provide for a leave of at least 14 weeks. However, recent case law of the CJEU questions whether maternity leave is consistent with this approach and respects the principle of non-discrimination on grounds of sex. This article challenges the EU Directives on maternity leave and seeks to find out to what extent they are based on a coherent single social risk approach, by examining not only EU and national legal sources but also medical literature. It concludes that the approach adopted by these Directives is not sufficiently consistent because for most women the period of incapacity for work will not last longer than 6 weeks after childbirth (puerperium), much shorter than the minimum 14-week period. The fact that maternity leave is a right of mothers and that in most instances a substantial part of the leave is only devoted to the care of the newborn is creating unsatisfactory effects on both mothers and fathers