The need for substantive equality to protect mothers and fathers from discrimination: An examination of CJEU and ECtHR jurisprudence

Abstract

Although numerous measures have been introduced to tackle the discrimination which pregnant women and mothers experience in England and Wales, there has been a significant increase in the reported instances of pregnancy and maternity discrimination in the past 10 years (Women and Equalities Committee, 2016). Similarly, around the last decade, fathers in England and Wales have been unsuccessful in their claims to reframe the limited entitlements allocated to them, which do not support their active participation in childcare, as sex discrimination. Even though fathers experience discrimination to a lesser extent than mothers, the societal and legal adherence to the traditional “male breadwinner” model has perpetuated the stereotype that mothers are primarily responsible for childcare, and fathers are expected to be the financial breadwinner. My paper contends that the incorporation of a fully substantive equality approach under the Equality Act 2010 would effectively guide the courts in England and Wales to importantly identify that the roles of motherhood and fatherhood are interrelated in discrimination cases concerning fathers. Consequently, the application of a substantive equality lens would encourage the increased participation of fathers in childcare as a means to dismantle the stereotypes that largely cause the discrimination directed against mothers and fathers.

Introduction

Although numerous measures have been introduced to tackle the discrimination which pregnant women and mothers experience in England and Wales, there has been a significant increase in the reported instances of pregnancy and maternity discrimination. ¹ In 2016, 77% of pregnant women and new mothers experienced discrimination in the United Kingdom (UK), ² as opposed to 45% in 2005. ³ Despite a primary goal of women’s equality being to secure maternity rights to protect the position of mothers in the workplace, Fredman rightly recognises the limitations of such an approach since the development of maternity rights ‘reinforce[s] rather than dispel[s] the assumption of women’s responsibility for childcare.’ ⁴ As a consequence, Coates explains that mothers experience ‘the double burden of performing paid labour while still retaining prime responsibility for the domestic care of… the young.’ ⁵ Similarly, in around the last 10 years, fathers in England and Wales have been unsuccessful in their claims to reframe the limited entitlements allocated to them as sex discrimination since it does not support the active participation of fathers in childcare. Even though fathers experience discrimination to a lesser extent than mothers, the societal and legal adherence to the traditional “male breadwinner” model has perpetuated the stereotype that mothers are primarily responsible for childcare, and fathers are expected to be the financial breadwinner. ⁶ This paper contends that the UK Parliament needs to amend the Equality Act 2010 to incorporate a fully substantive equality approach to discrimination cases. Altering the equality approach to discrimination cases concerning fathers would guide the courts in England and Wales to importantly identify that the roles of motherhood and fatherhood are interrelated. As a result, in order to tackle the discrimination experienced by mothers and fathers, the application of a substantive equality lens would encourage the increased participation of fathers in childcare as a means to dismantle the stereotypes that largely cause the discrimination directed against mothers and fathers.

At present, the court system in England and Wales has promoted traditional parenting ideals due to the implementation of a blended “substantive formal equality” approach largely derived from the equality approach adopted under the Equality Act 2010 and the strong influence of the Court of Justice of the European Union (CJEU) jurisprudence. ⁷ Formal equality entails an Aristotelian ⁸ ‘comparing like with like’ approach ⁹ wherein any inconsistent treatment found between an individual and a relevant comparator whose circumstances are not materially different would be sufficient evidence to the courts that discrimination has occurred. ¹⁰ In contrast, substantive equality aims to tackle any disadvantage perpetuated by social structures or hierarchies towards individuals belonging to marginalised or minority groups. ¹¹ The Equality Act 2010 guides the courts in England and Wales to apply a blended “substantive formal equality” approach to discrimination cases. For instance, under s.13 and s.19 of the Equality Act 2010, a relevant comparator is needed to prove direct and indirect discrimination respectively. However, s.158 and s.159 of the Equality Act 2010 allows service providers, public bodies, and other associations to introduce positive action measures. ¹² The courts in England and Wales have also used CJEU jurisprudence as a guide on how to implement the blended “substantive formal equality” approach to discrimination cases introduced by fathers. The CJEU jurisprudence that has been typically followed consists of the justification of the limited entitlements allocated to fathers, and the provision of stronger entitlements for mothers, to fulfil childcare responsibilities. Fathers who have experienced discrimination identify mothers as the relevant comparator in order to argue that the stronger legal support for mothers to assume childcare responsibilities is discriminatory. The CJEU previously determined that the circumstances of mothers are materially different to fathers because, unlike fathers, mothers are regarded as the only parent that experiences discrimination due to the need to take time off work to recover from the effects of pregnancy and childbirth and the societal expectations that stereotype mothers as chiefly responsible for childcare. The CJEU regarded the stronger legal support for mothers as positive action measures, which are measures that prevent or compensate for the occupational disadvantages that mothers incur. ¹³ Whilst positive action measures are commendable, in reality, the blended “substantive formal equality” approach serves to perpetuate, rather than tackle, the stereotypes associated with parenting roles by encouraging mothers to be largely responsible for childcare and fathers to earn the household income.

The following structure will be adopted in this paper to provide evidence that the UK Parliament needs to introduce a fully substantive equality approach under the Equality Act 2010 so that the courts are sufficiently guided to recognise how greater paternal involvement in childcare would lessen the discrimination experienced by mothers and fathers. The second section of this paper will show how the blended “substantive formal equality” approach adopted by the courts in England and Wales towards discrimination cases concerning fathers has ultimately perpetuated the discrimination directed against mothers and fathers. This section will also explore the shortcomings of the CJEU judgments that have heavily influenced the equality approach undertaken by the court system in England and Wales. Due to the current definition of substantive equality being often of a vacuous nature, ¹⁴ the third section of this paper will apply Fredman’s 4-dimensional definition of substantive equality ¹⁵ to the recent European Court of Human Rights (ECtHR) and CJEU jurisprudence to show how a substantive equality approach effectively tackles discrimination. Tenets of substantive equality have become increasingly favoured as a means of interpretation by the ECtHR ¹⁶ and the CJEU ¹⁷ because the theory better protects disadvantaged societal groups. ¹⁸ Additionally, Fredman’s 4-dimensional approach encompasses the aim of: (i) redressing disadvantage (the redistributive dimension); (ii) addressing stigma, stereotyping, prejudice, and violence (the recognition dimension); (iii) enhancing voice and participation from minority and marginalised groups (the participative dimension); and (iv) accommodating for differences through the inclusion of structural change (the transformative dimension). ¹⁹ The ECtHR and CJEU judgments that will be analysed are those that provide the strongest example of a practical application of each of the dimensions, with the CJEU judgments being those that were cited by fathers to support their discrimination claims in England and Wales. Even though fathers can experience disadvantage on multiple grounds such as race, ²⁰ sexuality, ²¹ and class, ²² this paper will largely focus on the ECtHR and CJEU judgments that established that fathers experienced discrimination on the ground of sex since fathers in England and Wales have been unsuccessful in their sex discrimination claims in just over the last decade. Lastly, the fourth section will provide a conclusion which will encapsulate how a fully substantive equality approach needs to be included under the Equality Act 2010 by the UK Parliament to direct the courts in England and Wales to establish judgments that effectively protect mothers and fathers from discrimination.

Blended “substantive formal equality” approach

Explanation of the theory

The CJEU has heavily influenced the approach undertaken by the courts in England and Wales towards discrimination cases introduced by fathers that aim to challenge the limited legal support for them to actively participate in childcare. De Vos categorises the equality approach currently adopted by the CJEU as a blended “substantive formal equality” approach. ²³ De Vos explains that the equality approach consists of ‘mixing substantive goals with formal equality,’ ²⁴ which entails interpreting substantive equality aims, such as results, impact, purpose, policy, dynamics, groups or society, through the simplistic definition of non-discrimination under formal equality. Additionally, the substantive equality concept of indirect discrimination has also been recognised, which pinpoints when a provision, criterion or practice presents as neutral but practically treats a societal group less favourably than another similarly situated societal group without there being an objectively legitimate aim. ²⁵ Despite the concept of direct discrimination establishing when an individual has been treated less favourably than another individual whose circumstances are not materially different, indirect discrimination better identifies the differential treatment of societal groups and provides redress in certain contexts. ²⁶ Formal equality has been described by Manfredi as the ‘neutral application of the law [which] does nothing to compensate marginalized groups for the accumulated disadvantages of past exclusion.’ ²⁷ The concept underpinning formal equality is that individuals that are similarly situated should be treated alike, whilst individuals that are differently situated should be treated differently. ²⁸ Formal equality focuses upon the equality concept of sameness-difference where there is ‘same treatment if one is the same, [and] different treatment if one is different.’ ²⁹ However, the alternative model of substantive equality has since been developed ³⁰ and increasingly favoured as a means of interpretation by the ECtHR ³¹ and the CJEU. ³² Radbord describes substantive equality as ‘considering the full social, political, and historical context of the case with an eye to the realities of historic discrimination and disadvantage.’ ³³ Radbord explains that substantive equality is central to understanding the root cause of discrimination and remedying societal disadvantage. ³⁴

The practical application of a blended “substantive formal equality” approach towards discrimination cases pertaining to fathers consists of fathers identifying mothers as a similarly situated relevant comparator that has been given stronger entitlements than fathers to undertake childcare. Fathers largely argue that the differential treatment amounts to sex discrimination because the design of entitlements promotes the gender stereotypes found under the traditional “male breadwinner” model, which expects mothers to be primarily responsible for childcare, and fathers to be the financial breadwinner. ³⁵ The implementation of a blended “substantive formal equality” approach to the facts of a discrimination claim introduced by fathers typically results in the justification of the differential treatment of fathers because mothers cannot be relevant comparators since their circumstances are materially different. Unlike fathers, mothers are perceived as the only parent that experiences discrimination due to the need to take time off work to recover from the effects of pregnancy and childbirth and the societal expectations that stereotype mothers as chiefly responsible for childcare. Under the blended “substantive formal equality” approach, the stronger legal support for working mothers to undertake childcare are viewed as positive action measures, which are measures that prevent or compensate for the occupational disadvantages that mothers incur. ³⁶ For instance, in the case of Abdoulaye v Renault, ³⁷ the CJEU had listed that the examples of the occupational disadvantages which mothers experience included a lack of workplace promotions, reductions in their period of service upon their return, the unlikelihood of claiming performance-related salary increases, absences from certain types of training and possible failure of adaptation to new technology installed. The Women and Equalities Committee had also reported that 100,000 mothers in the UK experienced harassment or negative comments in relation to their pregnancy, 53,000 women were discouraged by their employers from attending antenatal appointments and 54,000 women were dismissed, made compulsorily redundant or felt pressured to leave their jobs because of the mistreatment. ³⁸

Legal attempts have been made to protect the position of mothers in the workplace, but the rates of pregnancy and maternity discrimination experienced by mothers has continued to increase because of the lack of development of legal measures that effectively support, and protect, the active participation of fathers in childcare. In the past, many mothers had minimal protection in the workplace until the Employment Protection Act 1975 first provided 3 essential statutory maternity rights which were the right to maternity pay, the right to return to work after pregnancy or childbirth and the right against unfair dismissal. ³⁹ The Employment Act 1980 further extended the Employment Protection Act 1975 and included the right to take time off work to attend antenatal appointments. ⁴⁰ The UK membership of the European Union (EU) strongly influenced a change in law to address the issue of cultivating a work-family balance for parents through the implementation of European directives. ⁴¹ For example, the domestic incorporation of the Pregnant Workers’ Directive 1992 ⁴² under the Trade Union Reform and Employment Rights Act 1993 increased the minimum length of maternity leave to 14 weeks and provided increased protection against dismissal on the grounds of pregnancy or childbirth. ⁴³ At present, mothers are notably allocated 52 weeks of maternity leave from the start of employment, of which they receive 39 weeks of pay. ⁴⁴ Moreover, “pregnancy and maternity” is recognised as a protected characteristic under s.4 of the Equality Act 2010, which pregnant women and mothers can rely upon to tackle the specific discriminatory practices directed against them. In contrast, the only entitlement that is exclusively provided for fathers to use is 2 weeks of paternity leave. ⁴⁵ Fathers have also relied upon “sex” as a protected characteristic under s.4 of the Equality Act 2010 to counter the discrimination that they have experienced, but they have been particularly unsuccessful around the past decade. Despite the development of maternity rights being commendable, the design of maternity and paternity leave evidently promotes adherence to the traditional “male breadwinner” model. The short-term length of leave for fathers and the long-term length of leave for mothers reinforces the gender stereotype that mothers are primarily responsible for childcare and that fathers are the economic breadwinners, ⁴⁶ which has contributed towards their experiences of discrimination.

Although positive action measures are praiseworthy because their aim is to offset the occupational disadvantages that contribute towards mothers’ experiences of workplace discrimination, the application of the blended “substantive formal equality” approach serves to perpetuate, rather than tackle, the stereotypes associated with parenting roles. Mothers are still expected to be primarily responsible for childcare, which does not alleviate the “double burden” of workplace and childcare responsibilities allocated to them. ⁴⁷ Fathers are still expected to have minimal participation in childcare and focus on earning the household income. ⁴⁸ The need for a similarly situated relevant comparator under the blended “substantive formal equality” approach fails to importantly comprehend that mothers and fathers can experience disadvantage perpetuated by social structures, as is recognised under a substantive equality approach. ⁴⁹ The traditional “male breadwinner” model is still viewed as the ideal societal family structure to adhere to. ⁵⁰ However, a fully substantive equality approach would recognise that greater legal support for fathers to undertake childcare is needed to deconstruct the gender stereotypes associated with motherhood and fatherhood under the traditional “male breadwinner” model and eliminate the discrimination directed against mothers and fathers.

Courts in England and Wales

In light of the blended “substantive formal equality” approach adopted under the Equality Act 2010 and CJEU jurisprudence, the court system in England and Wales have been heavily influenced to similarly apply the equality approach to the discrimination cases introduced by fathers. The practical application of this equality approach results in the justification of the differential treatment of fathers and the promotion of positive action measures that aim to offset the occupational disadvantages that mothers experience that contribute towards their experiences of workplace discrimination. For example, even though a relevant comparator is needed to prove direct and indirect discrimination under s.13 and s.19 of the Equality Act 2010, s.158 and s.159 of the Equality Act 2010 allows service providers, public bodies, and other associations to introduce positive action measures. ⁵¹ Although these measures seem to promote aspects of substantive equality within the context of parenting, this sub-section will analyse judgments decided by the courts in England and Wales in around the last 10 years to show the limitations of a blended “substantive formal equality” approach in protecting mothers and fathers from discrimination.

In the 2014 case of Shuter v Ford, ⁵² a working father, Mr Shuter, challenged the positive action measure introduced by Ford Motor Company which allocated statutory pay to fathers on additional paternity leave and full wage replacement pay to mothers on maternity leave. Additional paternity leave was an entitlement that was introduced in 2010 that provided mothers with the ability to transfer 26 weeks of their maternity leave at 20 weeks post-birth to fathers to use. ⁵³ Mr Shuter argued that the lower pay for fathers to take leave than mothers ‘act[ed] as a significant disincentive to fathers from taking this leave’ ⁵⁴ since he was paid £18,000 less on additional paternity leave than a mother on maternity leave would have been paid. Mr Shuter rightly put forth that the provision of enhanced pay for mothers than fathers undermined the policy objective underpinning additional paternity leave which was to give fathers ‘a[n]…equal opportunity to participate in the upbringing of their children.’ ⁵⁵ Mr Shuter contended that the lower support for fathers to be actively involved in childrearing amounted to direct or indirect sex discrimination under the Equality Act 2010.

First, the Employment Tribunal (ET) disagreed with the claim for direct sex discrimination because s.13(6)(b) of the Equality Act 2010 specified that men cannot challenge differential treatment if it relates to the special treatment afforded to a woman in connection with pregnancy, childbirth, or maternity. Furthermore, the ET identified that a mother on maternity leave and a father on additional paternity leave were not similarly situated since only mothers experience discrimination because they need to take time off work to recover from the effects of pregnancy and childbirth and are stereotyped to be primarily responsible for childcare. Instead, the ET held that the comparator that would be similarly situated would be a mother on additional paternity leave. Second, the ET established that the claim for indirect sex discrimination was unfounded because the provision of 100% replacement pay for mothers on maternity leave was a positive action measure. Ford Motor Company had provided statistical evidence that the intention behind the positive action measure was to increase the number of women in their workforce. From 1999 to 2013, Ford Motor Company reported that the percentage of their female employees increased from 6.17% to 8.9%. ⁵⁶ Moreover, there were now fewer women working in administrative grades and more women working in professional and senior management grades. For instance, no women were employed at the highest grade in 1999, whilst 12% of those employed at the highest grade in 2014 were now women. ⁵⁷ Likewise, Ford Motor Company had managed to increase the number of mothers who had returned to work after taking maternity leave, with no more than 20% not returning to work between 2001 and 2013. ⁵⁸ The positive action measure introduced by Ford Motor Company can be partly commended for providing increased financial support to mothers through the provision of enhanced pay, as there is evidence to show that the recruitment and retention of women in their workforce has improved.

However, the proportion of women that constitute the workforce at Ford Motor Company is still alarmingly low. Mr Shuter had pointed out that the company had a target of increasing the percentage of women that make up its workforce to 25%, which it had not achieved and would still place male employees as a significant majority even if it were achieved. ⁵⁹ Additionally, the statistical evidence had shown that 91.1% of the workforce in 2013 consisted of men. ⁶⁰ The ET readily accepted the argument put forward by Ford Motor Company that ‘it remains difficult to recruit women into engineering jobs… [since] to some extent [it] continues to be less attractive to women’ ⁶¹ without delving deeper into the factors as to why some women find it difficult to remain within the field of engineering. For example, Thébaud and Taylor found from their study that involved interviewing women in STEM that motherhood was constructed in opposition to their professional legitimacy. ⁶² Thébaud and Taylor coined this social phenomenon as the “specter of motherhood” and explained that the stereotypes attached to the role of motherhood conflicted with the stereotypically masculine image of those working in STEM, which presented mothers who prioritised childcare as incompetent and uncommitted employees. ⁶³

Benard and Correll argue that many employers uphold the conscious or subconscious belief that successful workers tend to have masculine characteristics such as that of assertiveness or dominance, whilst the feminine characteristics such as being nurturing or warm that mothers have are culturally inconsistent in the workplace. ⁶⁴ Many employers uphold a cultural bias that mothers who engage within paid work are untrustworthy, selfish, or cold because they are acting outside of the typical social norm surrounding motherhood. ⁶⁵ Therefore, mothers are habitually denied work opportunities, higher salaries, and job promotions. ⁶⁶ Likewise, the Trades Union Congress (TUC) reported that mothers are subject to a “motherhood pay penalty,” which is a term that describes how women who have children earn less than women who do not have children. ⁶⁷ From the use of the data provided by the 1970 British Cohort Study, an ongoing study which follows the lives of an estimated 17,000 people born in 1970 within Britain, the TUC revealed that full-time employed mothers who had reached the age of 42 earned 11% less than women who were similarly situated to them without children. ⁶⁸ In addition, the House of Commons found that the pay gap between mothers and fathers after the birth of their first child amounted to 10% between 1991 and 2015. ⁶⁹ By the time that same child reached the age of 13, the pay gap between mothers and fathers increased to 30%. ⁷⁰

The ET did not consider that an obvious way to dismantle the gender stereotypes attached to parenting roles that contribute towards the discrimination that mothers and fathers experience was to encourage the increased participation of fathers in childcare. The data presented by Ford Motor Company had shown that there was difficulty in encouraging men to take paternity leave, as the highest reported figure of men taking the entitlement was 1.7% in 2010. ⁷¹ Like Mr Shuter had made clear, increasing wage replacement pay would financially incentivise fathers to take leave and promote equally shared childcare between mothers and fathers. The positive action measure to provide only mothers with full replacement pay on leave largely serves to reinforce the stereotype that mothers are chiefly responsible for childcare, which contributes towards their experiences of workplace discrimination. Instead, a fully substantive equality approach would recognise that both parents should be provided with a non-transferable, well-paid leave entitlement in order to encourage equally shared childcare responsibilities and deconstruct the stereotypes associated with the roles of motherhood and fatherhood. The positive action measure of full wage replacement pay for only mothers on leave does not alleviate the “double burden” of workplace and familial obligations placed upon them. ⁷² Similarly, the role of fatherhood should be inclusive of a caring role societally and denying fathers the opportunity to care for, and bond with, their children disadvantages them. The need for a similarly situated relevant comparator under the blended “substantive formal equality” approach has overlooked the discrimination which fathers also experience since they experience discrimination to a lesser degree than mothers. The application of a blended “substantive formal equality” approach by the Court failed to recognise how their support for the differential treatment of fathers promoted gender stereotypes that perpetuate the discrimination directed against mothers and fathers when they attempt to establish their position in the workplace and the home respectively.

Likewise, in the 2019 joined appeals of Ali v Capita and Hextall, ⁷³ 2 fathers again unsuccessfully challenged the positive action measure introduced by their employers that provided statutory pay to fathers on shared parental leave and enhanced pay to mothers on maternity leave. Shared parental leave later replaced additional paternity leave in 2014 and allowed mothers to transfer the remaining 50 weeks of their maternity leave after completing the compulsory 2-week period of maternity leave. ⁷⁴ The case of Ali v Capita concerned a father, Mr Ali, who had argued that the lower pay provided to fathers on shared parental leave by his employer, Capita Customer Management, constituted direct sex discrimination. Mr Ali reasoned that the purpose of the initial 2 weeks of maternity leave was to provide mothers with time to physically recover from childbirth, whilst the subsequent 12 weeks centred on facilitating childcare. The case of Hextall involved a father, Mr Hextall, who had maintained that the lower replacement pay given to fathers by his employer, Leicestershire Police, amounted to indirect sex discrimination since mothers benefitted from the workplace policy of “occupational maternity pay” that provided mothers with full replacement pay for 18 weeks of maternity leave. Both fathers ultimately reasoned that these workplace policies allocated limited financial support for fathers to be the primary carers, whilst mothers were paid more to perform the same level of childcare.

The Employment Appeal Tribunal (EAT) agreed with the ET that Mr Hextall had not been discriminated against, as the purpose of maternity leave was to legally support mothers who were pregnant, had given birth, and were breastfeeding. Additionally, the EAT overturned the initial decision made by the ET that Mr Ali had experienced sex discrimination because the purpose of maternity leave was to provide time for mothers to prepare for childbirth during the final stages of pregnancy, to physically recover from the biological effects of pregnancy and childbirth, and to bond with their children. The EAT affirmed that a mother on maternity leave was not the relevant comparator for a father on shared parental leave since shared parental leave solely centred upon childrearing unlike maternity leave. Therefore, the EAT determined that a mother on shared parental leave would be the correct comparator that would be similarly situated to a father on shared parental leave. Similar to the judgment of Shuter v Ford, the EAT stressed that under s.13(6)(b) of the Equality Act 2010 fathers could not challenge differential treatment if it related to the special treatment afforded to a woman in connection with pregnancy, childbirth, or maternity.

Again, the positive action measure introduced by Capita Customer Management and Leicestershire Police can be partly commended for providing increased financial support to mothers to protect their health and wellbeing during pregnancy and childbirth. However, in practice, the positive action measure does not safeguard the health and wellbeing of mothers because mothers are not provided with solely time to rest and recover from the effects of pregnancy and childbirth because they are now made chiefly responsible for the care of their newborn child with limited help from fathers. Additionally, Beck, Watson and Gable highlight that traumatic childbirth experienced by mothers constitutes an international public health concern. ⁷⁵ In the UK, an estimated 30,000 women experience a traumatic birth every year, ⁷⁶ which can include women having to undergo an emergency caesarean, painful deliveries, or their children needing to go to the Neonatal Intensive Care Unit (NICU). ⁷⁷ With a large proportion of women experiencing difficulties from childbirth, the primary responsibility of childcare being allocated to mothers does not support the promotion of the health and wellbeing of mothers who need to rest instead of performing caring labour to such a high degree.

Mr Ali in the joined appeals of Ali v Capita and Hextall wanted to take shared parental leave because his wife had been diagnosed with postnatal depression and had received medical advice that her return to work would help to improve her symptoms. Although the National Screening Committee has reported that 1 in 10 new mothers are affected by postnatal depression, ⁷⁸ the EAT ruled that Mr Ali’s wife, and ultimately mothers also in a similar position, should still be primarily responsible for childcare despite the fact that it could potentially worsen their health and wellbeing. The judgment by the EAT promoted traditional parenting ideals wherein the concept of being a good mother is ‘measured by the number of her children and the quantity of time she spends with them.’ ⁷⁹ Correspondingly, the EAT also reaffirmed that the concept of being a good father is undertaking an uncaring role and being the family breadwinner. ⁸⁰ The EAT failed to identify in the joined appeals of Ali v Capita and Hextall that the inclusion of fathers in childcare through the provision of non-transferable well-paid leave would better promote the health and safety of mothers.

Additionally, in the 2021 case of Price, ⁸¹ a working father, Mr Price, challenged the positive action measure introduced by their employer, Powys County Council, which provided statutory pay to fathers on shared parental leave and enhanced pay to mothers on maternity and adoption leave. Mr Price relied upon a mother on maternity or adoption leave as a relevant comparator and argued that he had been subject to direct sex discrimination from being provided lower replacement pay than mothers on leave to undertake childcare. Furthermore, Mr Price maintained that he had experienced indirect sex discrimination because the process in acquiring information on the level of pay which fathers would receive on leave was unnecessarily lengthy and disadvantaged fathers.

The EAT upheld that the indirect sex discrimination claim was unfounded because the lengthy process in obtaining information on the pay given to fathers on leave was a sincere mistake. With regards to the direct sex discrimination claim, the EAT maintained that a mother on maternity leave was not a comparator that was similarly situated to a father on shared parental leave. Unlike the purpose of shared parental leave that centred upon solely facilitating childcare, the policy objectives of maternity leave were to provide time for mothers to prepare to give birth during the final stages of pregnancy, to physically recover from pregnancy and childbirth, and to bond, breastfeed and care for their children. The EAT further determined that a mother on adoption leave was not a similarly situated comparator to a father on shared parental leave. The purpose of shared parental leave centred upon facilitating childcare, whilst the purpose of adoption leave was seen to go beyond solely the fulfilment of childcare and allocated time to an adoptive parent to ‘prepare and maintain an appropriate and safe environment for their adopted child.’ ⁸²

Akin to the joined appeals of Ali v Capita and Hextall, the positive action measures introduced by Powys County Council to promote the health and wellbeing of mothers during pregnancy and childbirth is laudable. As previously discussed, mothers were not provided with measures in the past that provided them with financial support to take time off work to recover from childbirth and to care for their children. Likewise, adoptive mothers were not specifically provided with paid adoption leave until The Paternity and Adoption Leave Regulations 2002. Adoptive mothers have been heavily stigmatised because they adhere to a non-traditional family structure, unlike the traditional “male breadwinner” model. ⁸³ March and Miall explain that the concept of good mothering is strongly tied to being biologically related to their children through pregnancy and childbirth. ⁸⁴ Farr and Vázquez describe adoption stigma as ‘stigma based on the absence of biological ties within families and the cultural prioritizing of biological parenthood.’ ⁸⁵ Hackney et al explain that these stigmatising beliefs consist of ‘adopted children being “second-rate” because of their unknown genetic history, and adoptive parents not being “real parents” because of their lack of biological ties.’ ⁸⁶ Although still persistent, societal and cultural norms strongly favoured “biological parenthood,” which is why adoptive mothers were legally treated differently to mothers who had given birth to their children. ⁸⁷ Despite the fact that the law has since treated the position of adoptive mothers and biological mothers as similar, ⁸⁸ positive action measures that provide adoptive mothers with paid time off work to prepare to create a safe environment to care for, and bond with, their children is praiseworthy.

Again, however, the EAT supported the gender stereotype that biological and adoptive mothers are primarily responsible for childcare instead of fathers, which contributes towards mothers’ experiences of workplace discrimination. Not only do biological mothers need support from fathers in order to be able to rest after recovering from the effects of pregnancy and childbirth, but adoptive mothers also need support in creating a safe environment for their adopted children. Introducing a fully substantive equality approach under the Equality Act 2010 would guide the courts to recognise that mothers and fathers experience different forms of disadvantage, which can be recognised without both parents needing to be similarly situated to one another. The promotion of equally shared childcare responsibilities through the provision of non-transferable well-paid leave for fathers would better support the increased involvement of fathers in childcare and protect mothers and fathers from discrimination.

CJEU jurisprudence

The equality approach adopted by the court system in England and Wales is strongly influenced by the blended “substantive formal equality” approach applied by the CJEU in discrimination cases concerning fathers. The courts in the cases of Shuter v Ford, Ali v Capita and Hextall, and Price all cited that the 1986 CJEU judgment in Hofmann v Barmer ⁸⁹ should be followed. Furthermore, the courts in the cases of Shuter v Ford and Ali v Capita and Hextall placed particular emphasis on following the decision made in the 2014 CJEU judgment in Betriu Montull. ⁹⁰ This sub-section will analyse the 2 most influential CJEU judgments for the courts in England and Wales to practically show how the blended “substantive formal equality” approach that the CJEU adopted in these judgments perpetuated the discrimination experienced by mothers and fathers.

The 1986 case of Hofmann v Barmer involved the denial of a request made by a father, Mr Hofmann, for the German provision that granted mothers 8 weeks post-birth an optional period of maternity leave to be similarly extended to fathers. Despite the argument that the exclusion of fathers from the leave entitlement could amount to sex discrimination in the workplace under the Equal Treatment Directive 1976, ⁹¹ the CJEU interpreted in the preliminary ruling that the German provision was not incompatible. The reasoning adopted was that maternity leave was not intrinsically linked with that of childcare purposes. The Court acknowledged that childcare was a responsibility shared by mothers and fathers, but that there were 2 purposes of maternity leave which ultimately justified the differential treatment of fathers. The first purpose was the protection of a woman’s biological condition during pregnancy wherein optional maternity leave introduced under the German provision allowed time post-birth for mothers to physiologically and mentally recover. The second purpose of the German provision was ‘to protect the special relationship between a woman and her child… by preventing that relationship from being disturbed by the… simultaneous pursuit of employment.’ ⁹²

The CJEU applied a blended “substantive formal equality” approach and determined that a mother was not a relevant comparator to a father like Mr Hofmann. Unlike fathers, only mothers underwent the biological condition of pregnancy and childbirth that they needed to physiologically and mentally recover from. The Court particularly relied upon art.2(3) of the Equal Treatment Directive 1976, which allowed for the special treatment of women in connection to pregnancy and maternity. The German Government explained that the differential treatment of fathers was justified becase the entitlement was a positive action measure that aimed to increase the number of mothers who took maternity leave to promote their health and wellbeing. Following the Equal Treatment Directive 1976, the CJEU underlined that a positive action measure to promote the health and wellbeing of mothers through the provision of stronger entitlements for mothers was justifiable. As was previously discussed in the previous sub-section in relation to the cases decided by the courts in England and Wales, the positive action measure promoting the health and wellbeing of mothers is relatively commendable. Measures such as optional maternity leave practically allows working mothers to take more time off work to recover from the effects of childbirth and take care of their children without the worry of having to return to work so as not to lose their jobs or to earn money to financially support childcare costs such as food and clothing.

However, the CJEU failed to recognise how their decision in Hofmann v Barmer promoted adherence to the parenting ideals established under the traditional “male breadwinner” model, which contributed towards the discrimination directed against mothers and fathers. Despite the fact that there was an increase in the number of mothers using maternity leave, Mr Hofmann also noted that the retention rates of women in the workplace was not aided by the introduction of the policy of optional maternity leave because there had been an increase in women not returning to work after the 6 months following childbirth. The CJEU failed to comprehend that reaffirming that only mothers should be allocated stronger leave entitlements reinforced the gender stereotype that mothers were primarily responsible for childcare. Without the support for the active participation of fathers in childcare, mothers are expected to simultaneously fulfil workplace and childcare responsibilities with little help from fathers, which consequently does not promote their overall health and wellbeing since an adequate work-family balance for mothers has not been achieved. As previously discussed, promoting the health and wellbeing of mothers can be effectively achieved if fathers can participate in childrearing while mothers rest to recover from the effects of pregnancy and childbirth on maternity leave, without having to also be responsible for childcare at the same time.

Furthermore, the preservation of the “breadwinning” stereotype ⁹³ wherein ‘parental care is neither a feature of nor a prerequisite for obtaining legal fatherhood’ ⁹⁴ only serves to devalue the care work performed by fathers even when they are primarily responsible for raising their children. The CJEU failed to recognise that the design of leave entitlements allocated to fathers are rooted in gender stereotypes, which perceive fathers as uncaring and unfeeling. ⁹⁵ The CJEU judgment of Hofmann v Barmer was decided in 1986 and clearly upheld an outdated notion on the roles that mothers and fathers should undertake in relation to childcare. Nevertheless, nearly 40 years later, this judgment is still the most influential in deciding that the role of fatherhood is not inclusive of a caring role by the courts in England and Wales. Although aspects of substantive equality are promoted in the judgment of Hofmann v Barmer through the concept of positive action, the application of a fully substantive equality approach would understand that encouraging the active participation of fathers in childcare would help limit the perpetuation of gender stereotypes that contribute towards the discrimination experienced by mothers and fathers.

Additionally, the courts in England and Wales were strongly influenced by the 2014 judgment of Betriu Montull, which concerned a father, Mr Montull, who had challenged a Spanish provision that allowed mothers to share their maternity leave with fathers if mothers were an employee that was covered by the Spanish social security scheme. The mother of Mr Montull’s child was self-employed and was not covered by the state social security scheme, which prevented her from accessing the right to maternity leave that could be thereafter shared with him. Mr Montull requested a prelimary ruling to particularly determine whether his inability to access the entitlement without permission from an eligible mother contravened the Equal Treatment Directive 1976 and constituted sex discrimination. The CJEU followed their earlier decision in Hofmann v Barmer and decided that the differential treatment of fathers was justifiable under art.2(3) of the Equal Treatment Directive 1976 since the provision was in relation to the special treatment of women in connection to pregnancy and maternity. The CJEU upheld that the purpose of maternity leave was principally to protect a woman’s biological condition during pregnancy and childbirth, and to protect the development of the mother-child relationship, without the simulatenous pursuit of employment. The Court maintained that working mothers are in a comparably more vulnerable position than working fathers since they had undergone childbirth and needed further support to reconcile work-family obligations since they are primarily responsible for childcare.

Although the support by the CJEU for a positive action measure that promoted the health and wellbeing of mothers is fairly commendable, the Court again failed to recognise that the design of the leave entitlements served to further perpetuate the disadvantage experienced by mothers and fathers. First, the fact that mothers are only entitled to access leave entitlements if they have a certain type of employment status does not practically promote the health and wellbeing of all mothers. Self-employed mothers also need access to maternity leave to support them in taking time off work to recover from the effects of pregnancy and participate in childrearing without the fear of having to return to work early to financially support their families. Eerola et al recognised that the increased uptake of leave entitlements was linked to the removal of strict eligibility requirements, ⁹⁶ which would effectively help to promote the health and wellbeing of mothers if all of them could access maternity leave. The International Labour Organisation reported that 11.7% of women were self-employed in Spain in 2023, ⁹⁷ which shows that a considerable amount of mothers cannot access maternity leave. Second, the fact that fathers cannot use the remainder of the maternity leave allocated to mothers unless mothers provide permission strongly limits the ability for fathers to actively participate in childcare and support the recovery of mothers from childbirth. Weldon-Johns explains that these measures position mothers as the ‘gatekeepers of fathers’ participation in care.’ ⁹⁸ A non-transferable leave entitlement for fathers would effectively dismantle the gender stereotype that fathers cannot perform caring labour like mothers and position both parents as equally capable of childrearing. ⁹⁹

McGlynn explains that the CJEU in cases such as Hofmann v Barmer and Betriu Montull upheld a “dominant ideology of motherhood”, which entailed that the mother-child relationship is sacrosanct, and that the completion of workplace tasks by mothers is secondary to childcare. ¹⁰⁰ The protection of the mother-child relationship is rooted in concepts such as Bowlby’s theory of monotropy, ¹⁰¹ which he later expanded to encompass the premise of ‘maternal deprivation.’ ¹⁰² Bowlby believed that children who lacked a rewarding relationship with their mothers within the early years of childhood could suffer from partial maternal deprivation wherein they could develop acute anxiety and depression. ¹⁰³ Children could also suffer from complete deprivation which could affect their character development and their ability to construct relationships. ¹⁰⁴ Bowlby’s theory has since been heavily critiqued and deemed outdated, as positive paternal engagement has been recognised as increasing the cognitive competence, empathy, and self-control of children. ¹⁰⁵ Furthermore, the increased involvement of fathers in childcare has been positively correlated with children developing fewer beliefs that are rooted in gender stereotypes. ¹⁰⁶ The positive effects of paternal care upon children shows that care work performed by fathers is as valuable as that performed by mothers. Moreover, the father-child relationship is as sacrosanct as the mother-child relationship. The traits associated with childcare, such as rearing and nurturing, are assumed to be found naturally within women. ¹⁰⁷ However, fathers are capable of rearing and being nurturing like mothers. Although the CJEU did incorporate aspects of substantive equality in their judgment in Betriu Montull through their support of positive action measures, the application of a fully substantive equality approach would better recognise that non-transferable leave for fathers would increase paternal involvement in childcare and promote the health and wellbeing of mothers.

Substantive equality

Explanation of the theory

In response to the inadequacies of formal equality, the alternative model of substantive equality has since been developed ¹⁰⁸ and increasingly favoured as a means of interpretation by the ECtHR ¹⁰⁹ and the CJEU. ¹¹⁰ Radbord describes substantive equality as ‘considering the full social, political, and historical context of the case with an eye to the realities of historic discrimination and disadvantage.’ ¹¹¹ Radbord states that substantive equality is central to understanding the root cause of discrimination and ensuring that the law respects the human dignity of all individuals from an equality perspective. ¹¹² The objective for gender equality for the last 3 decades has been to constitutionally shift from a formal equality perspective to a substantive equality approach. ¹¹³ Byrnes maintains that a substantive equality approach is increasingly preferred because the equality model adequately addresses the ‘asymmetrical structures of power, dominance and disadvantage at work in society.’ ¹¹⁴ Árnadóttir states that the success associated with substantive equality is heavily linked to the fact that the theory does not rely upon a relevant comparator to establish discrimination. ¹¹⁵ Instead, the theory focuses upon tackling the disadvantage perpetuated by social structures or hierarchies towards individuals belonging to minority or marginalised groups. ¹¹⁶

Although substantive equality seeks to address the fundamental source of discrimination, the practical application of substantive equality within law is of a vague nature. ¹¹⁷ The court system has found it challenging to incorporate the principles of substantive equality into decision-making in a clear and consistent manner. ¹¹⁸ Fredman explains that there have been various interpretations of the core meanings of substantive equality, which have primarily included equality of results, equality of opportunity and dignity, but that the nature of substantive equality cannot be captured by a single principle like formal equality. ¹¹⁹ Fredman has proposed a 4-dimensional definition of substantive equality which I will be applying in this section to further explore how this equality model could help protect mothers and fathers from discrimination. ¹²⁰ The 4 dimensions include: 1. Redistribution; 2. Recognition; 3. Participation; and 4. Transformation. ¹²¹ The redistributive dimension focuses upon dismantling the disadvantage perpetuated against minority and marginalised groups under social structures and hierarchies. ¹²² The recognition dimension aims to eliminate the stigma, stereotyping and violence perpetrated against individuals based upon gender, sexual orientation, disability, race, or any other status. ¹²³ The participative dimension intends to enhance the voice and participation of minority and marginalised groups that have typically faced social exclusion. ¹²⁴ Lastly, the transformative dimension aims to modify existing social structures to create an environment that accommodates for the needs of minority and marginalised groups. ¹²⁵

Due to the limited breadth of discrimination cases concerning fathers challenging the limited entitlements allocated to them to undertake childcare, fathers in the discrimination cases introduced in the court system in England and Wales relied upon CJEU cases from the past 2 decades that incorporated a stronger substantive equality approach. Similarly, this section will analyse ECtHR and CJEU jurisprudence from the past 2 decades that provide the strongest examples of each dimension of Fredman’s definition of substantive equality. I acknowledge that the ECtHR and the CJEU do not incorporate a fully substantive equality approach since a relevant comparator is needed for discrimination claims, for example, but both courts have increasingly applied a stronger substantive equality approach since the equality model better identifies, and tackles, discrimination. ¹²⁶ The CJEU case law analysed in this section will be those that were cited by fathers to support their discrimination claims in England and Wales. Furthermore, s.6 of the European Union (Withdrawal) Act 2018 has stipulated that the UK courts may pay some regard to any relevant decisions made by the CJEU after the departure of the UK from the EU. Additionally, in comparison to the CJEU, the ECtHR has more readily incorporated stronger aspects of substantive equality, ¹²⁷ which is why the ECtHR jurisprudence will be particularly explored in this section. Moreover, the Human Rights Act (HRA) 1998 incorporates the European Convention on Human Rights (ECHR) ¹²⁸ into UK law, ¹²⁹ and the UK courts must take into account any judgments, decisions, declarations or advisory opinions made by the ECtHR under s.2(1)(a) of the HRA 1998. This section will use the ECtHR and the CJEU jurisprudence that display the strongest example of each dimension of Fredman’s definition of substantive equality to show how the theory sufficiently protects mothers and fathers from discrimination.

Substantive equality approach of the CJEU and the ECtHR

Redistribution

Fredman describes the redistributive dimension as providing redress for the disadvantage perpetuated against minority and marginalised groups that have been caused by an imbalance of power established under a number of social structures and hierarchical systems. ¹³⁰ The nature of disadvantage can take the form of socio-economic disadvantage which can entail under-representation in the job sector, under-payment for work of equal value to those belonging to privileged societal groups or limitations on access to property or credit, for example. ¹³¹ However, the nature of disadvantage is not purely limited to the above, as the disadvantage dimension also aims to tackle any political, social, economic, or physical constraints that is not the product of ‘an individual’s status or group identity… but the detrimental consequences attached to that status.’ ¹³²

A key example of the redistributive dimension tackling the disadvantage experienced by fathers in order to promote substantive equality within the context of parenting can be seen in the judgment of Weller v Hungary. ¹³³ The case involved Mr Weller and his twin sons, Daniel and Máté, who had been deemed ineligible from accessing a maternity benefit due to the nationality of the mother of the children. The applicants claimed that their exclusion from accessing the maternity benefit amounted to discrimination on the ground of the nationality of the mother of the twin sons and the parental status of Mr Weller. The applicants explained that being prevented from accessing the maternal benefit amounted to a violation of arts.8 and 14 of the ECHR, which contained the rights to respect for private and family life and to non-discrimination respectively. The ECtHR determined that there had been a violation and that the refusal to allow Mr Weller and his twin sons to access the maternity benefit amounted to discrimination. The Court explained that ‘while differences may exist between [the] mother and father in their relationship with the child, both parents are “similarly placed” in taking care of the unborn child.’ ¹³⁴

The practical application of the redistributive dimension in the judgment of Weller v Hungary recognised that the lack of financial support for fathers to participate in childcare is a form of disadvantage. The Hungarian Government attempted to argue that the differential treatment of fathers was justified because the ‘aim of maternity allowances was primarily… for the mother to maintain a healthy life.’ ¹³⁵ However, the Court responded that ‘the allowance… [was] aimed at supporting newborn children and the whole family raising them, and… reducing the hardship of giving birth sustained by the mother.’ ¹³⁶ The ECtHR understood that supporting the participation of fathers in childcare challenged the gender stereotypes attached to the role of fatherhood, but also motherhood. In providing limited financial support for fathers to remain in childcare, fathers would find it difficult to maintain their position as carers for their children for a long period of time without having to return to work soon after childbirth. Many fathers would typically have to continue to work to earn the household income to be able to afford childcare necessities such as nappies, formula milk and clothes, for example. Allowing fathers to have access to the maternity benefit would allow them to take time off work to tend to childcare without the financial stress or worry that they would not be able to afford childcare necessities. Moreover, supporting the participation of fathers in childcare served to further promote the health and wellbeing of mothers as they had time to rest and recover from childbirth without being simultaneously primarily responsible for childcare. The application of the redistributive dimension in Weller v Hungary identified that the disadvantage which fathers experienced was through the limited financial support provided to them to undertake childcare. Moreover, the dimension recognised that the benefit needed to be extended to fathers to sufficiently tackle the gender stereotypes associated with parenting roles that contributed towards the discrimination perpetuated against mothers and fathers.

Recognition

The recognition dimension is described by Fredman to redress ‘stigma, stereotyping, humiliation, and violence on grounds of gender, race, disability, sexual orientation, or other status.’ ¹³⁷ The dimension recognises that the identity of individuals is constructed through social norms which dictate their social status. ¹³⁸ Each identity has social implications in which some group identities hold social privilege and other group identities are subject to certain forms of social inequality, such as humiliation, devaluation, and denigration, for example. ¹³⁹ The recognition dimension largely helps in identifying and dismantling the stereotypes surrounding certain group identities. ¹⁴⁰ Instead of purely focusing upon the identity of the individual, the recognition dimension aims to tackle the social consequences that arise from their social identity. ¹⁴¹

An example of the recognition dimension helping to dismantle the gender stereotypes associated with parenting roles can be seen in the judgment of Markin v Russia. ¹⁴² This case concerned a military serviceman, Mr Markin, who was denied access to 3 years of parental leave under the Russian Military Service Act 1998 because the leave entitlement was only accessible to military servicewomen. Mr Markin claimed that his denial of access to parental leave amounted to discrimination. Unfortunately, the Russian Constitutional Court argued that the denial could not amount to discrimination, as the purpose of the leave entitlement was to support the ‘special social role of women associated with motherhood.’ ¹⁴³ Mr Markin brought his claim to the ECtHR stating that his denial of access to parental leave amounted to a violation of his right to private and family life under art.8 of the ECHR and his right to non-discrimination under art.14 of the ECHR. The ECtHR agreed that Mr Markin had been subject to discrimination by being denied access to the leave entitlement, as the difference in treatment was founded on ‘gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners.’ ¹⁴⁴ Although the Russian Constitutional Court had explained that servicemen who wished to undertake childcare had the freedom to resign, the ECtHR understood that fathers were forced ‘to make a difficult choice between caring for their new-born children and pursuing their military career, [in which] no such choice [was] being faced by servicewomen.’ ¹⁴⁵

In light of the recognition dimension of substantive equality, the ECtHR acknowledged that the exclusive access of servicewomen to parental leave strongly adhered to the gender stereotypes surrounding motherhood and fatherhood that was established under the traditional “male breadwinner” model. The Russian Government put forth that a significant reason as to why parental leave was only allocated to servicewomen was because there were few women in the army and the provision of parental leave for mothers could increase retention rates. Yet, the Court upheld that the design of the entitlement did not correct the societal disadvantage directed against women and instead had ‘the effect of perpetuating gender stereotypes [that]… is disadvantageous both to women’s careers and to men’s family life.’ ¹⁴⁶ The Court explained that the provision of parental leave to women only promoted ‘inequality and hardship arising out of women’s traditional role of caring for the family in the home rather than earning money in the workplace.’ ¹⁴⁷ The Court clearly highlighted that the increased inclusion of fathers in childcare helped to combat the stereotype directed towards fathers that they should be the financial breadwinner, and that women experience workplace discrimination because of the stereotype that they should be primarily responsible for childcare.

The ECtHR judgment further aimed to depart from the traditional “male breadwinner” model by adopting a gender-neutral stance to their interpretation of the entitlement. For example, the Court stated that ‘parental leave and parental leave allowances relate to the subsequent period [after childbirth] and are intended to enable a parent… to stay at home to look after an infant personally.’ ¹⁴⁸ The gender-neutral interpretation of parental leave reinforced how childcare is a gender-neutral responsibility which either parent can assume. Furthermore, the Court reaffirmed that ‘society had moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men’s caring role had gained recognition.’ ¹⁴⁹ The focus upon deconstructing the gender stereotypes associated with the roles of motherhood and fatherhood by the ECtHR in Markin v Russia eliminated the discriminatory effect that the eligibility requirements to access parental leave had upon fathers wanting to participate in childcare and mothers wanting to establish their position in the workplace.

Participation

The participative dimension is concerned with 2 aspects. The first aspect focuses upon increasing the political representation of marginalised and minority groups. ¹⁵⁰ The second aspect aims to promote the social cohesion of these social groups. ¹⁵¹ Fredman explains that the lack of political representation of marginalised and minority groups has led to their needs having been overlooked by the law and fails to sufficiently support their inclusion in aspects of society. ¹⁵² The participative dimension particularly helps to legally facilitate the social cohesion of fathers in childcare, as they belong to a socially marginalised sub-group within men. However, the current lack of legal support for the participation of fathers in childcare has confined fathers to the workplace and has largely excluded them from exercising decision-making powers in relation to childcare. Due to the interrelated relationship shared between motherhood and fatherhood, mothers have been confined to the home and have been largely excluded from progressing in the workplace like fathers.

The father in the case of Price particularly relied upon the CJEU case of Maïstrellis ¹⁵³ to present the argument to the EAT in England and Wales that the provision of statutory pay to fathers on shared parental leave and enhanced pay to mothers on maternity and adoption leave constituted sex discrimination. Although Mr Price was unsuccessful in his discrimination claim, this sub-section will analyse the CJEU judgment of Maïstrellis to highlight how the participative dimension helped facilitate the social cohesion of fathers in childcare to ultimately promote substantive equality within parenting. This case concerned a father, Mr Maïstrellis, who had challenged a Greek provision that did not allow fathers to access parental leave if their wife was unemployed. Mr Maïstrellis requested a preliminary ruling to particularly determine whether his inability to use parental leave contravened the Recast Directive 2006, ¹⁵⁴ which promoted the implementation of the principle of equal opportunities and equal treatment of men and women within employment. The Court agreed that the design of the entitlement contravened the Directive because mothers and fathers were equally placed to raise children and, therefore, the CJEU established the entitlement needed to be made accessible to fathers regardless of the employment status of the mother.

In light of the participative dimension of substantive equality, the CJEU acknowledged that the need for mothers to be employed for fathers to access parental leave strongly supported traditional parenting ideals. The Court considered the fact that the differential treatment of fathers could be justified as a positive action measure to encourage the improvement of the safety and health of pregnant employees and working mothers under the Pregnant Workers’ Directive 1992. However, the CJEU explained that depriving fathers of the right to parental leave because of the employment status of the mother could not constitute a measure that promoted the health and safety of mothers. Instead, the Court recognised that the design of the entitlement was ‘liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties.’ ¹⁵⁵ The entitlement only supported the active participation of fathers in childcare only if the mother was employed and fulfilling workplace responsibilities, which ultimately placed fathers as secondary to mothers in relation to performing care work. Encouraging the participation of fathers in childcare allowed the gender stereotypes associated with motherhood and fatherhood under the traditional “male breadwinner” model to no longer be perpetuated, which helped to effectively tackle the discrimination that fathers and mothers experience when establishing their position in the home and the workplace respectively. The participative dimension understood that the participation of fathers in childcare needed to be legally facilitated by leave entitlements and that the increased involvement of fathers in childcare would consequently alleviate the “double burden” of workplace and childcare responsibilities placed upon mothers. ¹⁵⁶ Through tackling the root cause of the discrimination directed against mothers and fathers, the application of the participative dimension encouraged the social cohesion of fathers in childcare and the social cohesion of mothers in the workplace.

Transformation

Fredman explains that the transformative dimension aims to alter existing social structures to accommodate for differences found amongst minority and marginalised groups in society. ¹⁵⁷ Fredman states that currently ‘society… bear[s] the cost of the specific characteristics of dominant groups,’ ¹⁵⁸ whilst ‘members of out-groups… conform to the dominant norm.’ ¹⁵⁹ In an effort to conform, minority and marginalised groups have to bear the brunt of the costs to be legally accommodated for. An example can be found with parents who have to accept the costs of childcare, as childcare is not accommodated for or normalised in the workplace. ¹⁶⁰

The fathers in all of the discrimination claims introduced to the courts in England and Wales that was discussed in the previous section relied upon the CJEU judgment of Roca Alvarez ¹⁶¹ to argue that the allocation of statutory pay to fathers on shared parental leave and enhanced pay to mothers on maternity and adoption leave amounted to sex discrimination. Even though each father was unsuccessful in their claims, this sub-section will show how the application of the transformative dimension by the CJEU in the case of Roca Alvarez helped to modify social structures to accommodate for the increased involvement of fathers in childcare and mothers in the workplace. This case involved a male employee whose request for “breastfeeding” leave under a Spanish provision was denied. The specific leave was designed so that only mothers with children aged less than 9 months old or fathers, if the mother was employed, were made eligible for the entitlement. A preliminary ruling was made to interpret whether the design of the entitlement constituted sex discrimination in the workplace against fathers under arts.2 and 5 of the Equal Treatment Directive 1976. The CJEU declared that the denial of fathers from accessing the leave cannot be considered to be a policy that promotes substantive equality. The Court explained that the “breastfeeding” leave ‘has been detached from the biological fact of breastfeeding, so that it can be considered as time purely devoted to the child and as a measure which reconciles family life and work.’ ¹⁶² Therefore, the Court concluded that the measure should be inclusive of fathers, as working fathers can feed, and devote time to, their child in the same way employed mothers can.

The transformative dimension of substantive equality helped to modify the social structure of the workplace that perpetuated gender stereotypes associated with parenting roles that contributed towards the discrimination experienced by mothers and fathers. The Court initally considered the fact that art.2(3) of the Equal Treatment Directive 1976 allowed for the special treatment of women in connection to pregnancy and maternity. The Court discussed how positive action measures were justifiable if they gave ‘a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men.’ ¹⁶³ However, the application of the transformative dimension brought attention to how the workplace is structured in relation to the fully committed worker model wherein the ideal worker is framed as predominantly focusing on completing workplace tasks and dedicating a limited amount of time to childrearing. ¹⁶⁴ The CJEU noted that denying access to fathers to the leave entitlement was liable to promote traditional parenting roles wherein fathers are secondary to mothers with regards to childcare.

The workplace structure currently only views women as responsible for childcare ¹⁶⁵ and so the design of leave entitlements has particularly focused on facilitating the increased involvement of mothers in the workplace and not on encouraging the participation of fathers in childcare. ¹⁶⁶ Yet, mothers cannot establish their position in the workplace if fathers do not actively participate in childcare and alleviate the “double burden” of familial and workplace responsibilities placed upon mothers. ¹⁶⁷ Fathers are unable to actively engage in childcare if the structure of the workplace is less accommodating of men taking leave and is hostile to the concept of equally shared childcare between mothers and fathers. ¹⁶⁸ Anderson maintains that the structure of the workplace needs to be altered in order to accommodate for fathers who want to actively participate in childcare and allow parents to develop a work-family balance. ¹⁶⁹ The application of the transformative dimension by the CJEU recognised that the introduction of entitlements that encouraged the active participation of working fathers in childcare would help to alter the workplace structure and allow mothers and fathers to cultivate a work-family balance. Modifying the workplace structure would normalise the fulfilment of childcare responsibilities by working parents and limit the perpetuation of traditional parenting ideals that contribute towards the discrimination faced by mothers and fathers.

Conclusion

This paper has shown that a significant way to protect mothers and fathers from discrimination is for the UK Parliament to introduce a fully substantive equality approach to discrimination cases concerning fathers under the Equality Act 2010. The blended “substantive formal equality” approach adopted under the Equality Act 2010 and CJEU jurisprudence has influenced the court system in England and Wales to apply the equality approach to discrimination claims introduced by fathers that challenge the measures that provide stronger support for mothers to participate in childcare than fathers. The practical application of the blended “substantive formal equality” approach by the courts in England and Wales has resulted in the promotion of the substantive equality concept of positive action through the lens of formal equality. Fathers typically identify mothers as the relevant comparator to support their discrimination claims. However, the courts frequently support positive action measures that aim to prevent or compensate for the occupational disadvantages that mothers incur from the gender stereotype that they should be primarily responsible for childcare under the traditional “male breadwinner” model. The courts often uphold that fathers are not similarly situated to mothers due to the biological differences relating to their ability to become pregnant and give birth, and the differing societal expectations that mothers should be primarily responsible for childcare. Despite the fact that the support for positive action measures is partly commendable, the blended “substantive formal equality” approach fails to recognise that these measures still reinforce that mothers are primarily responsible for childcare and that fathers are secondary to such, which perpetuates the discrimination directed against them.

Instead, this paper recommends that a fully substantive equality approach would adequately provide redress for the discrimination experienced by mothers and fathers. Substantive equality has been largely successful in helping remedy the discrimination directed against parents, as the theory aims to tackle the disadvantage that is rooted within, and perpetuated by, social structures and hierarchies. Substantive equality identifies fathers as a marginalised sub-group within men who experience discrimination when attempting to be actively involved in childcare. The application of a fully substantive equality lens acknowledges that the discrimination directed against mothers and fathers stems from the legal and societal adherence to the traditional “male breadwinner” model. Yet, substantive equality also recognises that the roles of motherhood and fatherhood are interrelated and that the inclusion of fathers in childcare dismantles the gender stereotypes associated with parenting roles and rather encourages equally shared childcare between parents. Although fathers experience discrimination to a lesser extent than mothers, legally facilitating the increased involvement of fathers in childcare would alleviate the “double burden” of work and childcare responsibilities placed upon mothers. ¹⁷⁰ Consequently, mothers would be provided with a greater ability to participate in the workplace. Whilst I acknowledge that the court system in England and Wales must adopt a blended “substantive formal equality” approach since that is the approach incorporated under the Equality Act 2010, the current form of the Act is insufficient in successfully combating the root cause of the discrimination perpetuated against mothers and fathers. This paper recommends that the Equality Act 2010 should instead promote Fredman’s 4-dimensional definition of substantive equality wherein a relevant comparator is unnecessary for a successful discrimination claim. The legal implementation of a fully substantive equality approach under the Equality Act 2010 would better enable the courts in England and Wales to effectively tackle the discrimination directed against mothers and fathers.