301

Chapter IX
Returning to work after childbirth: A comparative legal
perspective on discrimination affecting new moms
Elena Falletti

Summary: 1. Introduction. – 2.CEDAW and ILO Convention and Motherhood

Discrimination. – 3. The ILO Conventions. – 3.1. Workers with Family Responsibilities
Convention, 1981 (No. 156). – 3.2. Maternity Protection Convention, 2000 (No. 183).
– 4. Discrimination as a form of violence under Article No. 4 of the Istanbul
Convention. – 5. Workplace and motherhood: discrimination issues. – 6. The roots of
article no. 4 in the Strasbourg case law. – 7. Discrimination and motherhood in a
comparative case law analysis. – 7.1. Italian Case Law. – 7.2.The United Kingdom. –
7.3.France. – 8. Conclusion.

1. Introduction

The aim of this article is focused on the analysis of the impact of

article no. 41 of the Istanbul Convention2 as a tool against the

1
Article no. 4 of the Istanbul Convention establishes: “Fundamental rights, equality
and non‐discrimination. 1 Parties shall take the necessary legislative and other measures
to promote and protect the right for everyone, particularly women, to live free from
violence in both the public and the private sphere. 2 Parties condemn all forms of
discrimination against women and take, without delay, the necessary legislative and
other measures to prevent it, in particular by: embodying in their national constitutions
or other appropriate legislation the principle of equality between women and men and
ensuring the practical realization of this principle; prohibiting discrimination against
women, including through the use of sanctions, where appropriate; abolishing laws and
practices which discriminate against women. 3 The implementation of the provisions
of this Convention by the Parties, in particular measures to protect the rights of victims,
shall be secured without discrimination on any ground such as sex, gender, race, color,
language, religion, political or other opinion, national or social origin, association with
a national minority, property, birth, sexual orientation, gender identity, age, state of
health, disability, marital status, migrant or refugee status, or other status.
2
S. DE VIDO, The Ratification of the Council of Europe Istanbul Convention by the
EU: A Step Forward in the Protection of Women from Violence in the European Legal
System, European journal of legal studies, 2017, Vol. 9, No. 2, pp. 69-102
 302

discrimination of women, especially when they return to work after

maternity.
The idea behind this paper is related to a real problem: on the one
hand, there is a social commitment for women to engage in maternity
and care for their children, but on the other hand there is a counterclaim,
illegitimate, between desire of women to create a professional
achievement and economic independence with the needs of employers
(whether these companies or individual entrepreneurs or professionals)
who think that maternity is a source of inefficiency and costs.3
This factual situation is governed by the law, though it is often
overlooked, but the constructive element that will be highlighted is the
contribution made by the Istanbul Convention on the subject, particularly
as regards the fight against discrimination, which constitutes an
underhand, indirect and difficult to fight effectively form of violence,
especially in the economic and working environment.
One of the aims of the community in its whole (which is expressed
through the state) should be to set up social policy instruments to meet
such needs. However, cost cutting and welfare state restriction are
putting them in jeopardy, leaving the individual concerned with such
problems. This approach could cause perverse effects, such as the
incentive to migrate women from other countries that leave their families
and their children to come to care for others at a salary which (though it
can be seen as significant in the perspective of the country of origin) is
often misleading and unjust (e.g. the lack of payment of contributions)
in the country of employment.4

http://cadmus.eui.eu/handle/1814/46069; F. POGGI, Violenza di genere e Convenzione

di Istanbul: un'analisi concettuale, Diritti umani e diritto internazionale, 2017, fasc. 1,
pagg. 51-76; R. SENIGAGLIA,La Convenzione di Istanbul contro la violenza nei
confronti delle donne e domestica, tra ordini di protezione e responsabilità civile
endofamiliare, in Riv. Dir. Priv., 2015, 1, pp. 111-150; pp. 33; G. PASCALE, L'entrata
in vigore della Convenzione di Istanbul sulla prevenzione e la lotta contro la violenza
nei confronti delle donne e la violenza domestica, in Osservatorio costituzionale, 2014,
p. 3.
3
L. M. FINLEY, Transcending Equality Theory: A Way Out of The Maternity and the
Workplace Debate, in 86 Colum. L. Rev. 1118.
4
P. PAROLARI, La violenza contro le donne come questione (trans)culturale.
Osservazioni sulla Convenzione di Istanbul, in Diritto & questioni pubbliche, 2014, 14,
p.1123.
 303

2. CEDAW and ILO Convention and Motherhood

Discrimination

CEDAW is the Convention on the Elimination of All Forms of

Discrimination Against Women, that was adopted by the United Nations
Assembly on 18 December 1979, and came into force on 3 September
1981.5
According to Article 2 of this Convention, «the main obligation of
States Parties is to «condemn discrimination against women in all its
forms, [and] to pursue by all appropriate means and without delay a
policy of elimination of discrimination against women»6. However,
Article No. 11 focuses precisely on women’s rights at the workplace, and
its second paragraph is a key point about the relationship between
motherhood, right to work and protection against discrimination7. It
states:«[I]n order to prevent discrimination against women on the
grounds of marriage or maternity and to ensure their effective right to
work, States Parties shall take appropriate measures: (a) To prohibit,
subject to the imposition of sanctions, dismissal on the grounds of
pregnancy or of maternity leave and discrimination in dismissals on the
basis of marital status; (b) To introduce maternity leave with pay or with
comparable social benefits without loss of former employment, seniority
or social allowances; (c) To encourage the provision of the necessary
supporting social services to enable parents to combine family
obligations with work responsibilities and participation in public life, in
particular through promoting the establishment and development of a
network of child-care facilities; (d) To provide special protection to
women during pregnancy in types of work proved to be harmful to
them».

5
E. EVATT, Finding a Voice for Women's Rights: The Early Days of CEDAW, 34
Geo. Wash. Int'l L. Rev. 515 (2002), 515
6
E. EVATT, cit.
7
J. N. C. NEO, Calibrating Interpretive Incorporation: Constitutional Interpretation
and Pregnancy Discrimination Under CEDAW, Human Rights Quarterly, 2013, p. 910.
 304

A specific institution is demanded to verify the CEDAW

enforcement: it is the United Nations Committee on the Elimination of
Discrimination against Women (CEDAW Committee). It is a committee
of 23 experts on women’s issues from around the world established in
19828. Its mandate regards monitoring «the progress for women made in
those countries that are the States parties to the 1979 Convention on the
Elimination of All Forms of Discrimination against
Women».9Furthermore, the Committee monitors the implementation of
national strategies to fulfill the Convention obligations.10
The CEDAW General Recommendation no. 19 is focused on
discrimination against women at workplaces. It emphasizes
that«discrimination under the Convention is not restricted to action by or
on behalf of Governments (see articles 2(e), 2(f) and 5). For example,
under article 2(e) the Convention calls on States parties to take all
appropriate measures to eliminate discrimination against women by any
person, organization or enterprise. Under general international law and
specific human rights covenants, States may also be responsible for
private acts if they fail to act with due diligence to prevent violations of
rights or to investigate and punish acts of violence, and for providing
compensation».
The Committee attributes a specific role to organizations and
businesses as employers and private companies that do not prevent,
under my perspective, discrimination of women, especially during
motherhood, nor do they provide for compensation for such violations.
The Committee itself seems to attribute to the traditional and male-
oriented culture the stigma of stereotypical weakness that forces women
into a subordinate position. At the same time, this stereotyped stigma is
used as a justification (“you are a mother and hence you cannot properly
engage at work”) and as a tool of discrimination (“just because you are
a mother I cannot give you complex assignments and job responsibilities
because you cannot fully accomplish them”). Indeed, Recommendation
No. 19 affirms:«[t]raditional attitudes by which women are regarded as

8
M. A. FREEMAN, The Committee on the Elimination of Discrimination Against
Women and the Role of Civil Society in Implementing International Women's Human
Rights Norms, 16 New Eng. J. Int'l & Comp. L. 25, p. 38.
9
M. A. FREEMAN, cit.
10
M. A. FREEMAN, cit.
 305

subordinate to men or as having stereotyped roles perpetuate widespread

practices involving violence or coercion, such as family violence and
abuse, forced marriage, dowry deaths, acid attacks and female
circumcision. Such prejudices and practices may justify gender-based
violence as a form of protection or control of women. The effect of such
violence on the physical and mental integrity of women is to deprive
them (sic) the equal enjoyment, exercise and knowledge of human rights
and fundamental freedoms. While this comment addresses mainly actual
or threatened violence the underlying consequences of these forms of
gender-based violence help to maintain women in subordinate roles and
contribute to the low level of political participation and to their lower
level of education, skills and work opportunities».

These words were written in 1992. A brief survey of the doctrine

published on this issue seems to show that the words of the Committee
have remained good intentions, hoping for a future improvement,
especially in the recognition of equity and dignity11, which would
hopefully make their way into law cases from real life12.
For an actual perspective, it should be noted that it is very difficult
to obtain recognition of the right to maternal nutrition for the child, for
instance through the arrangement of breastfeeding places 13, which is an
essential activity for the child’s survival.
This is a clear example of how discrimination can be hidden in the
essential activities of the daily life of infants, which the new mothers,
generally, face alone.
Indeed, there is a big contradiction. On the one hand, the protection
of maternity and the well-being of the child are formally and

11
C. MCCRUDDEN, CEDAW in National Courts: A Case Study in Operationalizing
Comparative International Law Analysis in A Human Rights Contex, 2017,
https://ssrn.com/abstract=2927707.
12
S. CUSACK, L. PUSEY, CEDAW and the Rights to Non-Discrimination and
Equality. CEDAW and the Rights to Non-Discrimination and Equality, Melb Jour Int
Law 14, (2013), p. 1 ss.
13
J. GALTRY, Strengthening the human rights framework to protect breastfeeding: a
focus on CEDAW, International Breastfeeding Journal, (2015), p. 29.
 306

unanimously considered a social function14. On the other hand, it often

happens that women with children sacrifice not only personal
achievement under a professional and work perspective, but they
sacrifice above all economic independence, which is the most important
factor for emancipation.

3. The ILO Conventions

The International Labour Organization is one of the longest

established international organizations15, its aim is to promote «social
justice and internationally recognized human and labour rights, pursuing
its founding mission that social justice is essential to universal and
lasting peace»16.
However, the ILO’s role as a promoter of conventions that can
effectively enhance worker protection is questioned by globalization and
neoliberal labor relations approaches17.
Under my perspective, I analyze, among its tools, the most
powerful instruments to fight motherhood discrimination, which are the
Convention concerning “Equal Opportunities and Equal Treatment for

14
R. HOLTMAAT, The CEDAW: a holistic approach to women’s equality and
freedom, in A. HELLUM, H. SINDING AASEN (eds), Women’s Human Rights: CEDAW in
International, Regional and National Law, Cambridge University Press, Cambridge –
New York, 2013.
15
G. RODGERS, E. LEE, L. SWEPSTON, J. VAN DAELE, The International Labour
Organization and the quest for social justice, 1919–2009, International Labour
Organization, Geneva, 2009, p. 42; H.G. BARTOLOMEI DE LA CRUZ, G. VON POTOBSKY,
L. SWEPSTON,The International Labor Organization: The International Standards
System and Basic Human Rights, Westview Press, 1996.
16
See ILO Website: promoting social justice and internationally recognized human
and labour rights, pursuing its founding mission that social justice is essential to
universal and lasting peace. J. K. BELLACE, Achieving Social Justice: The Nexus
Between the ILO's Fundamental Rights and Decent Work, 15 Empl. Rts. & Employ.
Pol'y J. 5 (2011), 7
17
D. PEKSEN, R. G. BLANTON, The impact of ILO conventions on worker rights: Are
empty promises worse than no promises? The Review of International Organizations,
2017, pp. 75-94.
 307

Men and Women Workers: Workers with Family Responsibilities”18 (and

its Corresponding Recommendation: Workers with Family
Responsibilities19) and the “Convention on Maternity protection”20 (and
its corresponding recommendation21).

3.1 Workers with Family Responsibilities Convention, 1981

(No. 156)

This Convention and its recommendations refer to the protection

of family life in cases in which both parents are involved in workplaces.
The aim of this Convention is to guarantee to both parents specific
benefits for children’s care where that economic support does not exist22.
According to Article No. 1 «the provision of this Convention
applies to parents (“men and women”) workers with responsibilities in
relation to their dependent children, where such responsibilities restrict
their possibilities of preparing for, entering, participating in or advancing
in economic activity (§1.1). The terms “dependent child” and “other
member of the immediate family who clearly needs care or support”
mean persons defined as such in each country by one of the means
referred to in Article 9 of this Convention”. They are: “laws or
regulations, collective agreements, works rules, arbitration awards, court
decisions or a combination of these methods, or in any other manner
consistent with national practice which may be appropriate, account

18
Convention concerning Equal Opportunities and Equal Treatment for Men and
Women Workers: Workers with Family Responsibilities (Entry into force: 11 Aug 1983)
Adoption: Geneva, 67th ILC session (23 Jun 1981)
19
Recommendation concerning Equal Opportunities and Equal Treatment for Men
and Women Workers: Workers with Family Responsibilities Adoption: Geneva, 67th
ILC session (23 Jun 1981)
20
Convention concerning the revision of the Maternity Protection Convention
(Revised), 1952 (Entry into force: 07 Feb 2002) Adoption: Geneva, 88th ILC session
(15 Jun 2000) - Status: Up-to-date instrument (Technical Convention).
21
Recommendation concerning Maternity Protection Adoption: Geneva, 35th ILC
session (28 Jun 1952) - Status: Replaced Recommendation; Recommendation
concerning the revision of the Maternity Protection Recommendation, 1952Adoption:
Geneva, 88th ILC session (15 Jun 2000) - Status: Up-to-date instrument.
22
L. ADDATI, Extending maternity protection to all women: Trends, challenges and
opportunities, International Social Security Review, 2015, p.76
 308

being taken of national conditions». The Convention No. 156/1981

applies to all branches of economic activity and all categories of workers
(Article No. 2). It provides to prevent conflicts between parents’
employment and family responsibilities (Article No. 3), to enable
workers with family responsibilities to exercise their right to free choice
of employment and take account of their needs in terms and conditions
of employment, and in social security (Article No. 4), to develop or
promote community services, public or private, such as child-care and
family services and facilities (Article No. 5).
Article No. 8 affirms that family responsibilities shall not, as such,
constitute a valid reason for termination of employment. This rule is
confirmed by proposition No. 16, of paragraph No. 3 of the Workers with
Family Responsibilities Recommendation.

3.2 Maternity Protection Convention, 2000 (No. 183)

This convention collected a great number of legal tools protecting

motherhood at workplaces, and it represents a proper soft law tool23
implemented in national regulations24, especially in Western countries25.
The critical point regards that while national legal systems implemented
appropriate regulation against motherhood discrimination, its voluntary
enforcement is hard, and it requires courts enforcement, as will be clearly
demonstrated in the next paragraphs.
The anti-discrimination aim of this convention is clearly shown in
Article No. 1: «the term woman applies to any female person without
discrimination whatsoever and the term child applies to any child without
discrimination whatsoever», despite the fact that in the last decades new
parenthood models have arisen in family life, such as LGBTIQ
parenthood. This sensitive issue permeates all the convention text, but
under my perspective I have in mind an extended concept of parenthood.
Indeed, the core of anti-discrimination policies promoted by this

23
L. WATER, Which Ideas, Whose Norms? Comparing the Relative Influence of
International Organizations on Paid Maternity and Parental Leave Policies in Liberal
Welfare States, Social Politics 2017, 37.
24
L. ADDATI, op. cit., pp. 76 ss.
25
L. WATER, op. cit.
 309

convention is contained in Article No. 9:«1. Each Member [State] shall

adopt appropriate measures to ensure that maternity does not constitute
a source of discrimination in employment, including - notwithstanding
Article 2, paragraph 1 - access to employment. 2. Measures referred to
in the preceding paragraph shall include a prohibition from requiring a
test for pregnancy or a certificate of such a test when a woman is
applying for employment, except where required by national laws or
regulations in respect of work that is: a) prohibited or restricted for
pregnant or nursing women under national laws or regulations; or(b)
where there is a recognized or significant risk to the health of the woman
and child».

Some of the articles seem leave backdoors to bypassing the spirit

of the Convention, despite the clear sense of its articles. For instance:
Article No. 2 states that the provisions of the convention apply to all
employed women, including those in atypical forms of dependent work,
but at the same time it establishes some exceptions to limited categories
of workers for the cases when its application to them would raise special
problems of a substantial nature, however without specifications.
Furthermore, Article No. 8 affirms specific provisions regarding
employment protection and non-discrimination. Indeed, according to this
article, it is «unlawful for an employer to terminate the employment of a
woman during her pregnancy or absence on leave» except on grounds
unrelated to the pregnancy or birth of the child and its consequences or
nursing. According to case law experience, under this clause employers
try to justify the dismissal of new-mom-workers26.
Nevertheless, as a guarantee to the dismissed employees, «the
burden of proving that the reasons for dismissal are unrelated to
pregnancy or childbirth and its consequences or nursing shall rest on the
employer».
The last paragraph of Article No. 8 could be a significant tool
against mobbing and work downgrading. It affirms that: «A woman is
guaranteed the right to return to the same position or an equivalent
position paid at the same rate at the end of her maternity leave».
Article No. 3 establishes that appropriate measures in favor of
pregnant of breastfeeding women shall to be adopted to guarantee them
26
See paragraph 6 with comparative case law experiences.
 310

to not perform work «prejudicial to the health of the mother or the child,
or where an assessment has established a significant risk to the mother's
health or that of her child».
Article No. 10 is related to breastfeeding issues, and it affirms that
the new mother has the right to one (or more) daily breaks or reduction
of hours of work to breasted her child. This period has to be determined
by national laws and these breaks and/or the reduction of daily hours of
work have to be counted as working time and remunerated accordingly.
This is one of the most sensitive points of discrimination of new-mom-
workers, especially in category of micro, small and medium-sized
enterprises (SMEs) because this remuneration is seen as a cost rather
than investment. However, a recent survey seems to demonstrate that this
is a stereotyped perception without a quantification of costs and
benefits27.
Article No. 4 is devoted to disciplining maternity leave. It affirms
that:«1. On production of a medical certificate or other appropriate
certification, as determined by national law and practice, stating the
presumed date of childbirth, a woman to whom this Convention applies
shall be entitled to a period of maternity leave of not less than 14 weeks.
2. The length of the period of leave referred to above shall be specified
by each Member in a declaration accompanying its ratification of this
Convention. 3. Each Member may subsequently deposit with the
Director-General of the International Labour Office a further declaration
extending the period of maternity leave. 4. With due regard to the
protection of the health of the mother and that of the child, maternity
leave shall include a period of six weeks' compulsory leave after
childbirth, unless otherwise agreed at the national level by the
government and the representative organizations of employers and
workers. 5. The prenatal portion of maternity leave shall be extended by
any period elapsing between the presumed date of childbirth and the
actual date of childbirth, without reduction in any compulsory portion of
postnatal leave».

Article No. 5 tries to set minimum standards that cannot be further

lowered, while it is obviously possible to improve maternity guarantees.

27
S. LEWIS, B. STUMBITZ, L. MILES, J. ROUSE, Maternity protection in SMEs. An
international review, Geneva, ILO, 2014, p. 7.
 311

This article is one of the points where it is more difficult to intervene in

changing mentality regarding the balance between maternity protection
and the necessary implementation of anti-discrimination tools in the
workplace.
Articles No. 6 and No. 7 have a ‘managing aim’, and establish rules
regarding cash benefits referred to. Articles No. 4 and No. 5 of the
Convention.
Drafters of the Istanbul Convention seem not to have taken
inspiration from these rules because they only considered the violence
against women in personal relationships, even under a sentimental and
family perspective, but not under the point inherent in discrimination at
workplaces, a more insidious and difficult to recognize form of violence.
So, there seems to be a lack of a complete view of the situations in which
women interact and may face in terms of violence, as if their lives were
isolated in compartments, rather than in a constant stream of public and
private relationships.

4. Discrimination as a form of violence under Article No. 4 of

the Istanbul Convention

Despite the best intentions shown by international conventions

such as the CEDAW and ILO, the basic social situation for women still
consists of a traditional approach where the role of the main breadwinner
is attributed to the man/husband, while the woman/wife has the private
role of childbirth and family caregiver28. The role of the male is public,
in the worlds of work, politics and culture, while the role of the female
is the private sphere of family, home, care, and support for the public
activities of his man/husband29. For instance, public examples of
mansplaining30 could show exactly this situation.
After the implementation of several juridical tools, discrimination
still persists and it could be seen as a subtle form of violence. Indeed, the

28
R. JUSTO, D. R. DE TIENNE e P. SIEGER, Failure or voluntary exit? Reassessing the
female underperformance hypothesis, Journal of Business Venturing 30 (2015) 775–
792, p. 783.
29
L. M. FINLEY, op. cit., p. 1118;
30
L. ROTHMAN, A Cultural History of Mansplaining, in The Atlantic, Nov. 1 2012.
 312

difficulty of change of mindset regarding discrimination has been taken

into account in the U.N. Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), which provides the
following statement:«[p]arties shall take all appropriate measures [...] to
modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women»31.

Thirty-eight years, later the Istanbul Convention repeated, using

almost the same words, the aim pursued by CEDAW,«[a]rticle 12 -
General Obligations. “1. Parties shall take the necessary measures to
promote changes in the social and cultural patterns of behavior of women
and men with a view to eradicating prejudices, customs, traditions and
all other practices which are based on the idea of the inferiority of women
or on stereotyped roles for women and men».

On the fight against discrimination, the Explanatory Report of the

Istanbul Convention spends even more interesting words«[t]he Preamble
sets out the basic aim of the Convention: the creation of a Europe free
from violence against women and domestic violence. To this end, it
firmly establishes the link between achieving gender equality and the
eradication of violence against women. Based on this premise, it
recognizes the structural nature of violence against women and that it is
a manifestation of the historically unequal power relations between
women and men».

In fact, one of the strongest and most resistant source of

discrimination is the economic gap due to the lack of work independence.
New mothers face multiple disadvantages: burdened by the
responsibility of parenting, seen as a cost by employers and often without
public help/welfare. This is even more true in environments where the

31
U.N. Convention on the Elimination of All Forms of Discrimination Against
Women, Dec. 18, 1979
 313

stereotyping of roles is widespread32. How can this be fought? For

example, given the growing budget cuts in public services, businesses
should invest more in benefits.
«[i]t should also be noted that the term “discrimination against
women” should be interpreted as constituting “any distinction, exclusion
or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men
and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field” as provided in Article
1 of CEDAW. At the same time the drafters wished to acknowledge that
violence against women and domestic violence may be explained and
understood in various manners at structural, group and individual
levels»as in organized working environments, such as larger companies,
industries, public administration. Also in smaller firms, such as small
family-run businesses, often women's work is taken under consideration,
both under a profile of an acknowledgment and because it is a low-cost
means of increasing family property.
However, in the event of a possible dissolution of the family
business the female worker33 (former wife or de facto partner34) remains
without a fair payment of her work.
According to the Explanatory Report, the Istanbul Convention
contribution, especially under the protection of motherhood perspective,
the provisions contained in article no. 3 and article no. 4 (the latter being
the object of this analysis) do not “create any new rights but clarify”
them35. About this, paragraph 50 of the Explanatory Report of the
Instabul Convention highlights that«[i]n the Opuz v. Turkey judgment,
the European Court of Human Rights has discussed the interconnection
between discrimination and violence against women and has held that

32
G. N. POWELL, K. A. EDDLESTON, Linking family-to-business enrichment and
support to entrepreneurial success: Do female and male entrepreneurs experience
different outcomes?, in Journal of Business Venturing 28 (2013) 261–p. 280
33
Trib. Teramo, 5 July 2016.
34
For the specific Italian case: Court of Cassation, 29 September 2015, No. 19304;
Court of Cassation, 3 November 2016, No. 22318. G. OBERTO, Ancora sulla pretesa
gratuità delle prestazioni lavorative subordinate rese dal convivente more uxorio, in
Fam. Dir., 2016, 2, p. 129.
35
Istanbul Convention, Explanatory Report, §47.
 314

gender-based violence constitutes a form of discrimination because it

mainly affects women and women were not protected by the law on an
equal footing with men».

For instance, what does “protection of victims of gender-based

violence” mean? Could the expression “gender-based violence” include
post-maternity leave discrimination? Indeed, the meaning of “gender-
based violence” seems to be strictly connected with family and personal
(and also sexual) relationships. However, under motherhood and
parenthood issues, it should be noted that the recent phenomenon of
involvement of homosexual couples in access to parenting, thanks to
both appropriate reproductive technologies and greater social freedom,
would lead to the assumption that this kind of violence will tend to
develop towards the parenthood, detaching it from the expression of the
sex, gender, or sexual orientation of the parent.
Under this point of view, the Explanatory Report explanation of §2
of Article no. 4 could help in understanding:«the principle of substantive
equality between women and men by requiring Parties to not only
condemn all forms of discrimination against women, but to enshrine the
principle of equality in law, ensure its practical realisation as well as
prohibit discrimination by law and abolish any discriminatory legislation
and practices. It recognises that the enjoyment of the right to be free from
violence is interconnected with the Parties’ obligation to secure equality
between women and men to exercise and enjoy all civil, political,
economic, social and cultural rights as set out in the human rights
instruments»for the purpose of enhancing the human being as a person,
especially if committed to a choice that constitutes the most important
passages of existence, such as parenthood.

5. Workplace and motherhood: discrimination issues

A scholar notes that “The recent ratification and implementation of

the Council of Europe Convention on the Prevention and Fight against
Violence against Women and Domestic Violence, signed in Istanbul on
11 May 2011, by L. June 27, 2013, no. 77 reiterated that “gender
violence” is “violence against women”, assuming it as well, especially
 315

“domestic violence”, against which it is necessary to increase the level

of awareness of “human rights” and “security of victims” (Article 18,
paragraph 3)”.36
This valid observation helps to understand that the Istanbul
Convention has a rearguard view of women, as, according to it, their role
can only be carried out within family relations. Indeed, a strong
attachment to the angel of the hearth figure and house keeper, linked to
marriage and other traditional concepts remain strong in the collective
imaginary.
As there is a social backwash of acceptance of the female role, as
evidenced by episodes of violence (often fatal, the so-called
“feminicides”)37 which concern women who try to get rid of their
traditional role in family life38, the profound transformation of society
that has broken up the usual models is now consolidated. In fact, it is
important for women to find professional realization and support in the
pursuit of professional life, especially in recognizing their role and work
contribution with adequate pay, as yet unmatched.39 It should be stressed

36
A. ZILLI, Il (diritto del) lavoro per il contrasto alla violenza di genere, in Lavoro
nella giur., 2016, 4, p. 333.
37
S. PETRILLI, Tutela delle vittime di violenza di genere: prevenzione, repressione
dei reati e nuove disposizioni per le lavoratrici, in Azienditalia - Il Personale, 2016, 1,
p. 29; F. MARIUCCI, La tutela della donna nelle relazioni di coppia: tra femminicidio e
violenza di genere, in Riv. Pen., 2016, 11, pp. 945-949; P. DONADI, I crimini contro le
donne e la legge sul femminicidio, in Sociol. dir., 2015, 1, pp. 103-119; F. BARTOLINI,
Considerazioni su alcune delle misure antiviolenza contenute nella L. n. 119/2013 su
sicurezza pubblica e “femminicidio”, in Archivio della nuova procedura penale, 2014,
1, pp. 1-7; S. BONINI,Sulla tutela penale di vittime fragili. Questioni sospese in materia
di atti persecutori e femminicidio (dopo il d.l. 93/2013). A margine, un'apertura della
Cassazione in tema di “mobbing” e lesioni personali, in Indice pen., 2014, 2, pp. 667-
699; E. BUCCOLIERO, Femminicidio. Una legge imperfetta, ma che rende le donne meno
ricattabili e i minori meno invisibili, in Minori giust., 2014, 1, pp. 153-158; F.
OCCHIOGROSSO, La legge sul femminicidio: un'occasione mancata, in Minori giust.,
2014, 1, pp. 148-152.
38
M. VALLINO, V. MONTARULI, Artemisia e le altre. Miti di rinascita nella violenza
di genere, Roma, 2016, p. 81 ss.
39
A. BROWN, E. PATTEN, The narrowing, but persistent, gender gap in pay, Pew
Research Center, 2017, http://www.pewresearch.org/fact-tank/2017/04/03/gender-pay-
gap-facts/, World Economic Forum, Gender Parity and Human Capital, 2016
 316

that female role and work have always been treated as invisible in social
relationships40 as low-level, hard, unrecognized, feminine work has
always existed, especially in the countryside and industry. This disparity
has irreparable consequences on income and on the autonomy of the
female workers because, together with the remuneration, it also affects
the contributions payable and hence the difference in pension income
when the worker retires. Indeed, female pensioners have poorer pensions
than male ones. This treatment diversity will be discounted throughout
the entire life of the female worker.
The European Court of Justice ruled on this specific point
condemning Italy: The Luxembourg court argues that. Article no. 141
EC prohibits any discrimination on grounds of remuneration between
male and female workers, which is the mechanism which generates this
inequality. Therefore, fixing of an age requirement that varies according
to sex for the granting of a pension constitutes a remuneration within the
meaning of Article no. 141 EC, and it is contrary to such provision41.
Indeed, the Court argued that establishing, for retirement purposes,
a different age depending on sex does neither compensate for the
disadvantages to which female workers are exposed by helping these
women in their professional life nor remedy the problems they may
encounter during their professional career. Therefore, maintaining in
force legislation which allows workers to receive old-age pension at
different ages, depending on whether they are men or women, the Italian
Republic has failed the obligations set forth in art. 141 CE42 regarding
equal pay for men and women for equal work or for work of equal value.
With regard to the specific issue that is here treated, the protection of the

http://reports.weforum.org/global-gender-gap-report-2016/gender-parity-and-human-
capital/
40
E. DAHLSTRÖM, R. LILJESTRÖM, The Patriarchal Heritage and the Working-Class
Women, in Acta Sociologica, Vol. 26, No. 1 (1983), p. 8; E. BOULDING, The Underside
of History: A View of Women through Time, New York, 1976.
41
Court of Justice of the European Union, 14 December 1993, case C-110/91,
Michael Moroni v Collo GmbH, §§10 and 20; Court of Justice of the European Union,
28 September 1994, Constance Christina Ellen Smith and others v Avdel Systems Ltd.,
cause C-408/92.
42
P. SCHLESINGER, F. BONETTI, Pensione di vecchiaia dei dipendenti pubblici e
parita' di trattamento tra uomini e donne, in Corriere Giur., 2009, 5, p. 589.
 317

working mother, the woman risks being discriminated even before she
becomes pregnant when she has to undertake specific treatments against
infertility.
About this, the Italian case law43, referring to the European Union
law44, states that dismissing a worker prior to implantation of ovules
already fertilized in vitro, proving that the resolution of the work contract
was due to the particular condition of the worker as a woman, is therefore
discriminatory for gender reason45.

6. The roots of the article no. 4 in the Strasbourg case law

According to the recent case law of the ECtHR, it is possible to

argue that the provisions of the European Convention of Human Rights
and Fundamental Freedoms constitute a kind of European common law
in the field of fundamental rights. Despite the presence of the margin of
appreciation, State Parties to the Convention cannot escape the
implementation of this “lowest common denominator”. For the purpose
of this research it is useful to check how the principles are developed in
the field of non-discrimination issues.
According to the Strasbourg case law, the interpretation of Article
no. 14 of the European Convention of Human Rights46 affirmed that not

43
http://www.osservatoriodiscriminazioni.org/index.php/2016/07/20/finalmente-
revirement-della-cassazione-sul-licenziamento-discriminatorio/
44
Court of Justice of the Euroopean Union, 26 February 2008, Sabine
Mayr contro Backerei und Konditorei Gerhard Flockner OHG cause C-506/06.
45
Indeed, Article 2(1) and 5(1) of Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal treatment for men and women as
regards access to employment, vocational training and promotion, and working
conditions, preclude the dismissal of a female worker who is at an advanced stage of in
vitro fertilisation treatment, that is, between the follicular puncture and the immediate
transfer of the in vitro fertilised ova into her uterus, inasmuch as it is established that
the dismissal is essentially based on the fact that the woman has undergone such
treatment
46
Article 14. Prohibition of Discrimination. The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth or other status.
 318

every difference in treatment consists of discrimination. For instance, in

the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment,
the European Court of Human Rights stated that«a difference of
treatment is discriminatory if it has no objective and reasonable
justification, that is, if it does not pursue a legitimate aim or if there is
not a reasonable relationship of proportionality between the means
employed and the aim sought to be realised»47

More recently, in the Salgueiro case the Strasbourg Court

reaffirmed in the same words that
«a difference of treatment is discriminatory within the meaning of
Article 14 if it has no objective and reasonable justification, that is if it
does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised»48

Some Strasbourg Court cases have influenced the development of

non-discrimination principles in the protection of women workers in the
Istanbul Convention. The most important of them seems to be the
Siliadin Case49. The case concerned the exploitation of a young African

47
European Court of Human Rights, 28 May 1985, Abdulaziz, Cabales and
Balkandali v. the United Kingdom, (Application no. 9214/80; 9473/81; 9474/81). See
also, the Belgian Linguistic case, para. 10, the Marckx case, para. 33, and the
Rasmussen case, para. 38.
48
European Court of Human Rights, 21 December 1999, Case of Salgueiro da Silva
Mouta v. Portugal, App. No. 33290/96, European Court of Human Rights, 18 July 1994,
Karlheinz Schmidt v. Germany, App. No. 13580/88.
49
European Court of Human Rights, 26 July 2005, Siliadin v. France, App. No.
73316/01. The case had been filed by a Togolese citizen who illegally immigrated to
France when she was still a minor. She was sold by her father to a relative with the
promise to send her to school and instead “loaned” to a couple of her acquaintances.
The young woman demanded the condemnation of France because the French
authorities had not put in sufficient efforts to protect her from servitude at the hands of
her “bosses” who obliged her to work as a servant and baby-sitter in their home for free
and without the possibility to change her miserable conditions, with the threat of being
reported as being clandestine. Her exploiters were sentenced by first-instance judges to
twelve months of detention (of which seven were suspended) and the compensation of
a hundred thousand francs, as they used the work of the young woman without a
residence permit, either paying it or paying contributions. However, the defendants
 319

immigrant illegally “loaned” by her acquaintances to a French couple as

a servant. In this case the judges of Strasbourg observed, first, that French
criminal law did not provide specific incriminating standards for slavery
cases but only a generic reference to the advantage obtainable from the
exploitation of the third parties work50.
As a result, the protection of the exploited girl was not sufficient
to ensure that she was exempt from the servile condition, for the young
woman’s fear of being indicted because of her clandestine status.
According to the Court’s Van Droogebroeck v. Belgium51 precedent, the
Strasburg judges held that, for the purposes of the Convention, the
condition of “servitude” concerns a duty imposed by the use of force to
provide her services. The Court noted that the fundamental values and
essential aspects of the victim's private life were at stake, but that they
had not been sufficiently protected by the adoption of indispensable
deterrence measures, which could only be achieved with the provision of

were defeated in appeal, and even though the sentence was overturned in cassation by
referring to a new appeal decision that only condemned the exploiters to payment of
just over thirty thousand euros, the young woman appealed to the European Court of
Human Rights to seek the French State's sentence for breach of art. 4 ECHR (M. G.
GIAMMARINARO, Articolo 5 in G. BISOGNI, G. BRONZINI e V. PICCONE, La Carta dei
diritti dell'Unione Europea. Casi e Materiali, Taranto, 2009, p. 92).
50
The Court affirmed that “Accordingly, the offences to which she had been
subjected fell within the provisions of Articles 225-13 and 225-14 of the Criminal Code
as worded at the material time. These were non-specific texts of a more general nature,
which both required that the victim be in a state of vulnerability or dependence. Those
concepts were as vague as that of the offender's “taking advantage”, which was also
part of the definition of the two offences. In this connection, she emphasized that both
legal commentators and the National Assembly's taskforce on the various forms of
modern slavery had highlighted the lack of legal criteria enabling the courts to
determine whether such a situation obtained, which had led in practice to unduly
restrictive interpretations” (European Court of Human Rights, 26 July 2005, Siliadin,
cit.).
51
The Court noted: “With regard to the concept of “servitude”, what is prohibited
is a “particularly serious form of denial of freedom” (see Van Droogenbroeck v.
Belgium, Commission's report of 9 July 1980, Series B no. 44, p. 30, §§ 78-80). It
includes, “in addition to the obligation to perform certain services for others ... the
obligation for the 'serf' to live on another person's property and the impossibility of
altering his condition” (Corte europea dei diritti umani, siliadin, cit)
 320

criminal law52. The Court held that, in the Siliadin case, there was an
infringement of Article No. 4 ECHR, because the perpetrators were not
imprisoned under the criminal law since this was non-existent53. By that
failure, the Court ordered France to reimburse the applicant for legal
expenses, but not to pay compensation for moral damages, since the
applicant had not applied for it.
What is the correlation between this case and the purpose of my
article? Siliadin is a case that does not fall under a specific singular
criminal provision, but it concerns a servile state and a form of violence
and discrimination that hinders all the life choices of the person involved,
for instance, the study to attend, the work to do, the friends to make, and
to form a family and, so, maternity.

7. Discrimination and motherhood in a comparative case law

analysis

Although anti-discrimination law is a matter for European Union

law in this paragraph, I want to focus on the comparative national case
law in order to understand how national antidiscrimination remedies can
be strengthened since the entry into force of the Istanbul Convention,
'article no. 4, because it refers to “all forms of discrimination against

52
M. G. GIAMMARINARO, Art. 5, cit. p. 93.
53
In addition, according to the report of 12 December 2001 by the French National
Assembly's joint taskforce on the various forms of modern slavery, Articles 225-13 and
225-14 of the Criminal Code, as worded at the material time, were open to very
differing interpretations from one court to the next, as demonstrated by this case, which,
indeed, was referred to by the taskforce as an example of a case in which a court of
appeal had unexpectedly declined to apply Articles 225-13 and 225-14. In those
circumstances, the Court considers that the criminal-law legislation in force at the
material time did not afford the applicant, a minor, practical and effective protection
against the actions of which she was a victim. It notes that the legislation has been
changed but the amendments, which were made subsequently, were not applicable to
the applicant's situation. It emphasizes that the increasingly high standard being
required in the area of the protection of human rights and fundamental liberties
correspondingly and inevitably requires greater firmness in assessing breaches of the
fundamental values of democratic societies (European Court of Human Rights,
Siliadin, cit.).
 321

women”. To focus on this issue, I scrutinized the recent case law of Italy,
the United Kingdom and France.

7.1. Italian Case Law

Discrimination in the workplace against female workers begins

before maternity itself, as in the case of alleged protection against
dismissal due to marriage, as provided by article no 1, paragraphs 2 and
3, of Law 9 January 1963 no. 7. The court states that it applies only to
female workers54 and not to male workers, because it is essentially to
prevent employers from withdrawing the employment relationship
taking into account the costs and disruptions resulting from absences for
maternity leave. Indeed, as regards the subordinate employment
relationship, the employee's pregnant worker's dismissal violates the
prohibition of discrimination, being ontologically gender-based, with
consequent nullity of dismissal and the application of reintegration
protection to the place of work55.
After a public competition, the refusal by the public administration
to enter into an employment contract with a successful pregnant
candidate on the basis of the ranking constituted direct gender
discrimination. In this case, the court recognized both pecuniary and non-
pecuniary loss, for the frustration due to the loss of a work opportunity
and the presumed stress and suffering caused during the delicate period
of pregnancy, equitably quantifiable to the amount of remuneration
which would have been received if the employment relationship had
been activated56.
As regards equal access to parental leave, the Constitutional Court
ruled on several occasions stating that the minor's interest is paramount
(if not absolute)57; therefore “the positions of the father and of the mother

54
Trib.Padova 9 May 2000, Trib. Firenze 28 February 2004, Trib. Milano 31 March
2006
55
Trib. Prato, April 9, 2010.
56
Trib. Prato September 10, 2010, in D & L 2010, 1063.
57
Constitutional Court 23 December 2003, No 371, Constitutional Court, May 16,
2002, No. 197; Constitutional court December 14, 2001, No. 405, Constitutional Court,
February 2010, No. 4623.
 322

are entirely fungible so as to justify the same disciplines”58. “By contrast,

the rules directly aimed at the protection of biological filiation, as well
as being aimed at the protection of the unborn child, are intended to
protect the health of the mother in the early and postnatal periods, and
therefore it is entirely evident that in such cases, the position of the
mother is not similar to that of the father”59.
More recently, the Constitutional Court60 emphasized that parental
leave does not only respond to a need for the recovery of the mother's
welfare, but also considers and protects “the relationship between mother
and child at birthtime. Both mothers’ and children’s welfare needs are
concerned, especially under their relational and affective care, regarding
the development of the personality of the child”61, especially in the case
of premature deliveries.
This is a remarkable decision because of the recognition in favor
of the mother of the right to resume work “at her request and in
accordance with her health conditions attested by medical
documentation” by using “compulsory leave, which is, or part of, from
the date of entry of the child into the family home”62. Before this
decision, the mother had to stay on mandatory maternity leave until it
expired. There were specific criminal prohibitions to accept her at the
workplace, but the mother may now decide to resume her activities at the
workplace in order to benefit from the remaining parental leave during
childhood of her baby. Parental leave is still mandatory, but the
Constitutional Court transformed it into a tool in favor of the family63.
Equal access to parental leave has been subject to an amendment
by the last labor law reform, known as “Jobs act”64 (Law No. 183/2014).
In this regard, Legislative Decree no. 80/2015, which implemented it,
modified some of the rules related to the complex relationship of

58
Constitutional Court, 28 July 2010, No. 285.
59
Constitutional Court, 28 July 2010, No 285.
60
Constitutional Court, 7 April 2011, No. 116.
61
R. NUNIN, I congedi parentali dopo il d.lgs. 15 giugno 2015, n. 80, in Lavoro
nella Giur., 2016, 1, p. 14.
62
L. CALAFÀ, Il sostegno della genitorialità dopo il Jobs Act, in Lavoro nella Giur.,
2015, 10, 877
63
L. CALAFÀ, op. cit.
64
R. NUNIN op. cit.; L. CALAFÀ, op. cit.
 323

parenthood and workplace. The most significant changes concern the 12-
year-old child's extension for the use of parental leave, but above all, the
treatment of fathers. Now both self-employed and free professional
fathers may enjoy the same parental leave as the subordinate workers,
with some specific exceptions65.
The recognition to equal access to parental leave does not concern
a discrimination fighting issue, but it regards a wider context. If the father
requests parental leave (as well as the mother), justifying his absence
from work to follow the child’s growth, motherhood (or parenthood) will
not only be a new mothers’ problem, but a shared need among
employees. So, employers should abandon “punitive” policies against
parents, promoting the reconciliation between life, family, and work,
more effective than a promise made through a legislative text66.
Despite a wide anti-discrimination legislation, a punitive attitude
towards women still survives, it is rooted in widespread culture
preventing them from a full equality recognition67. Indeed, both under a
social and familiar perspective, a woman who does not want to have
children is required to justify her choice68. Some scholars investigate
whether this approach could be referred to some influence of the mixed
Catholic and fascist legacies still present in the more conservative
mentality about the idea of family69, as it could demonstrate a recent

65
L. CALAFÀ, op. cit.
66
L. CALAFÀ, op. cit.
67
A. SPADA, C. SUNNA, Discriminazioni nei confronti delle lavoratrici madri e
dimissioni per maternità: un’analisi cognitivo-sperimentale, in E. CIAVOLINO (ed.),
Valutazione delle dimissioni delle lavoratrici madri, in I Quaderni Regionali di Parità,
Bari, 2013, pp. 181-210.
68
A. ROSINA, M. R. TESTA, Senza figli: intenzioni e comportamenti italiani nel
quadro europeo, in Rivista di studi familiari, 2007, pp.71-81; L. LAZZARI, Quando la
scienza fallisce: Maternità negata e ridefinizione della “normalità”, in L. LAZZARI, J.
CHARNLEY,To Be or Not to Be a Mother: Choice, Refusal, Reluctance and Conflict.
Motherhood and Female Identity in Italian Literature and Culture – Essere o non essere
madre: scelta, rifiuto, avversione e conflitto. Maternità e identità femminile nella
letteratura e cultura italiane, Intervalla: Special Vol. 1, 2016.
69
P. GINSBORG, Famiglia Novecento, Torino, 2013, pp. 245 ss.; F. DI LORENZO, “La
carriera di madre”: La demistificazione del ruolo materno in Paola Masino, Laudomia
Bonanni e Anna Banti, in To Be or Not to Be a Mother, cit., p. 74 ss.
 324

ministerial campaign known as “Fertility Day”70, that stressed the duty

to conceive children in order population ageing.

7.2. The United Kingdom

In common law there are few recent published cases of post-

maternity discrimination. It seems that controversies are withdrawn for
the dismissal of the plaintiff71, even in the case in which the mother won
her claim72, or the court declared its lack of jurisdiction73. In one case74
the claimant sued the respondents for sex discrimination and because the
employer «refused to allow her to have time off to care for her daughter
in an emergency and deliberately changed her hours of work to make it
difficult to care for her daughter who had a disability». However, the

70
Fertility Day, la campagna del governo scatena le polemiche sui social, Corriere
della Sera, 31.8.16; Polemiche sul 'Fertility Day' lanciato dal ministero della Salute:
“Insulta chi non ha figli”, La Repubblica, 31.8.16.
71
Miss S Logue v Northamptonshire County Council: (England and Wales : Breach
of Contract : Disability Discrimination : Parental and Maternity Leave : Public Interest
Disclosure : Sex Discrimination) [2017] UKET 3400335/2017 (16 June 2017); ([2017]
UKET 3400335/2017; From United Kingdom Employment Tribunal; Miss H Parish v
Mr Paul Betts (England and Wales : Parental and Maternity Leave : Unfair Dismissal)
[2017] UKET 3400410/2017 (26 July 2017); ([2017] UKET 3400410/2017; From
United Kingdom Employment Tribunal); Miss K Roberts v Zurich Financial services
(UKISA) Ltd (England and Wales : Flexible Working : Parental and Maternity Leave :
Part Time Workers : Sex Discrimination : Unfair Dismissal) [2017] UKET
1302205/2016 (7 April 2017); Mrs O Pettier v Taylormade Golf Ltd and Mrs Susan
Taggart: (England and Wales : Flexible Working : Maternity and Pregnancy Rights :
Parental and Maternity Leave : Sex Discrimination : Unfair Dismissal) [2017] UKET
1400318/2017 (8 April 2017)
72
Miss N L Bates v Done Brothers (Cash Betting) Ltd t/a Betfred Retail (England
and Wales: Breach of Contract: Parental and Maternity Leave: Unfair Dismissal:
Working Time Regulations) [2017] UKET 2401066/2016 (24 February 2017)
73
Miss N Wright v Protocol Education: (England and Wales: Parental and Maternity
Leave: Sex Discrimination: Unfair Dismissal) [2017] UKET 2200172/2017 (7 June
2017)
74
Andrea Brady v Jepsons Ltd and Andrew Chell (England and Wales: Breach of
Contract: Disability Discrimination: Parental and Maternity Leave: Sex
Discrimination: Unfair Dismissal: Unlawful Deduction from Wages: Written Pay
Statement) [2017] UKET 2400427/2016 (14 March 2017)
 325

claimant failed to show evidence that«the change in hours made it harder

for her to pick up her daughter from school was an effect of the change
but we accept the change was driven by the respondent wishing to run
his business more efficiently. The claimant had no evidence and there
was nothing from which we could draw inferences that the reason he
changed her hours was because the claimant had a disabled daughter,
accordingly even if the disability of the claimant’s daughter could be
established and that the respondent at the time had knowledge of it there
is nothing to suggest any connection between the change in hours and
the disability of the claimant’s daughter. Accordingly, a direct
discrimination claim cannot be made out»75.

In a different case, the claimant widely reported the abuse and

discrimination suffered at the workplace by a restaurateur while she was
pregnant«[t]he Claimant told the Tribunal how the Respondent was
initially kind to her which encouraged her to work extremely hard for
him. However, after she told him she was pregnant, he told her she should
get rid of the baby. He repeated these three times. This upset the Claimant
who told the Tribunal that her pregnancy was a beautiful thing for her
and she was so happy that she was to become a mother. According to the
Claimant, the Respondent also asked her if she knew who the father was
(the Claimant told the Tribunal that of course she knew who the father
is). When the Claimant asked a colleague named Raheen if he would lift
a crate of empty glass bottles because she feared that she should not be
lifting while pregnant, Raheen told the Claimant if she could not do the
job she should get out. The Respondent sent a text message to the
Claimant saying that he did not think she should work at the restaurant
anymore; the Claimant felt sure that this was because she was pregnant.
The Claimant and the Respondent had a meeting at which the
Respondent told the Claimant she could return to work but the Claimant
understood the Respondent to be saying that she must ignore her
pregnancy meaning that she would have to follow the Respondent’s
instructions, including lifting heavy items. The Claimant told the
Tribunal that she wondered if the Respondent wanted her to lose the baby
or leave of her own accord. The Claimant also makes reference in her

75
Andrea Brady v. Jepsons Ltd and Andrew Chell, cit.
 326

statement to the Respondent saying “I bet you don’t have pink nipples”.
All these acts of discrimination caused the Claimant upset and distress».

Legal disputes like these apparently demostrate that the

enforcementeof anti-discrimination laws (such as Employment Rights
Act 1996 and Equality Act 2010) does not prevent employers from doing
discriminatory conducts, even serious, against their workers during
maternity leave. Legal sanctions do not seem to be sufficient to prevent
the implementation of such conducts, at least without a wider
commitment to improve the widespread mindset in favour of new moms
and their needs.

7.3. France

In France, as it is well known, the protection of maternity, and new-

mom-workers, is an essential part of the French welfare state policies,
however it seems interesting to see how in individual cases the courts
protect maternity. Indeed, it is consistently recognized by tribunals
that«the protection against dismissal enjoyed by a pregnant woman
during maternity leave shall extend to all acts preparatory to dismissal.
The employer cannot therefore take any measure relating to a dismissal
during this period, except for the hypothesis of serious misconduct of the
pregnant worker or the impossibility of maintaining the contract of
employment»76.

However, in some cases the dismissal for economic reasons during

maternity leave constituted discrimination. The French Court of
Cassation considered that«the acts preparatory to dismissal during the
period of protection could not constitute discrimination in so far as it was
necessary to approach the employee precisely in order to prepare her
reclassification; in so doing, the protection against dismissal of a
pregnant woman during maternity leave extends to all acts preparatory

76
Cour de cassation - Chambre sociale, 14 September 2016, n.1599.
 327

to dismissal, the Court of Appeal (…) infringed Article L 1225-4-1 of

the Labor Code»77.

About the interpretation of this article, a different decision of the

French Court of Cassation78 states that«no employer may terminate an
employee's employment contract when she is in a medically confirmed
pregnancy condition and during the entire period of suspension of the
employment contract to which she is entitled during maternity leave, (…)
and for the four weeks following the expiry of those periods. This
provision relating solely to dismissal does not exclude the application of
these provisions relating to the contractual termination of the contract of
employment; that it is not affected by a declaration of invalidity when it
occurs during the period of protection of the employee due to maternity».

Furthermore, the French case-law states that the worker, returning

from maternity leave, must return to the job occupied before the
pregnancy, or if that former position is no longer available or she herself
is no longer fit, the employer must propose an appropriate one to her
capabilities79.
If the dismissal had an unjustifiable cause, such as unsuitability, in
order to mask the true reason (i.e. the pregnancy of the worker), the
dismissal must therefore be declared null and void for breach of the
obligation to reclassify80.
In a similar case, the notification of two successive warnings, a few
days after the return of the worker from maternity leave and sick leave,
followed by a dismissal for gross misconduct of an unjustified nature,
suggests, in the absence of a disciplinary precedent, the existence of a
discriminatory attitude against the worker,81 so her dismissal was null
and void.

77
Cour de cassation, civile, Chambre sociale, 14 septembre 2016, cit.; Cour de
cassation, Chambre sociale, 8 July 2015, 14-15.979.
78
Cour de cassation, Chambre sociale, 25 March 2015, 14-10.149.
79
Cour d'appel de Bastia, 23 November 2016, 15/00292.
80
Cour d'appel de Bastia, 23 November 2016, 15/00292
81
Cour d'appel d'Angers, 2 February 2016, 13/01210
 328

8. Conclusion

What emerged from this analysis of the case law of Italy, the
United Kingdom and France is that article no. 4 of the Istanbul
Convention could be used as a legal education tool. On the one hand, as
we know, this article recommends fighting any form of discrimination
against women, and on the other hand, domestic violence could also have
an impact on the workplace environment. Furthermore, it is useful to
focus on the fact that female discrimination due to maternity factors is
also a form of violence because it is discriminatory, even if it is nuanced
according to the different national situations. Under this perspective, the
issue is how to use Article No. 4 of the Istanbul Convention to protect
the return of new moms to workplace due to family life choices.
Education, culture, information dissemination, would be the areas in
which to take advantage of the “other tools” provided by article 4.
Moreover, legislative power may not be enough, and so social
intervention must be provided, even of business companies. Indeed, it
also emerged that most women and men expect companies, in addition
to legal obligations, to adopt internal policies and practices to support
pregnancy and maternity of their employees, by among other things
addressing service shortcomings concerning public sector care for
children82.

82
F. MOSCARINI, M. GATTI, M. DELLA CORTE e D. CASERTA, L’impatto
organizzativo della gravidanza e della maternità, Impresa-Progetto, in Electronic
Journal of Management, 2014, 2, pp.2-24.