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B - Maternity leave
84. Article 8 para. I guarantees that women will be provided with leave through adequate payments. The Committee has felt the need to justify the very existence of the protection for which Article 8 para. I provides because of tendencies in this field. "Female employees have traditionally been considered [...] a category requiring special measures for their protection [...]. This approach appears today to be increasingly contested. Consequently, any regulations on women's work are now perceived as a form of disguised discrimination, having adverse effects on equality of opportunity in employment". Aware of the importance of this change in attitudes, the Committee stated that it "has always been careful [...] to distinguish regulations that could be perceived as discriminatory from those having a social purpose likely to guarantee the effective protection of women in certain circumstances". It placed Article 8 para. 1 among the latter, taking the view that "the biological constraints inherent in maternity should nevertheless be taken into consideration", and emphasising "that the principle of non-discrimination, on which the Charter itself is based, should not be pushed to a point where the particular position of women with respect to maternity would be overlooked". 85. The Committee has taken the view that the protection afforded by Article 8 para. 1 was "a social right [...], benefiting both the mother and the child", and not "discriminatory vis-a-vis the interests of the woman worker", and that this was a "necessary and appropriate measure which can, on no account, be challenged on any ground relating to equality of treatment". 86. It was in this spirit that the Committee specified the twofold obligation derived from this provision: providing maternity leave; providing such leave through adequate payments. a. Right to maternity leave 87. The Committee has affirmed the existence of this right and specified the length and compulsory/optional nature of the leave. 1. Existence of this right 88. In the very first supervision cycle the Committee affirmed that this right existed: "The Committee interpreted this provision as meaning that all Contracting Parties having accepting it are bound to ensure a twelve weeks' maternity leave". It has constantly confirmed both that this was a right and that this right related to the leave itself. It felt the need to specify this latter point, an obvious one a priori, when a Contracting Party argued that "the obligation deriving from this paragraph [Article 8 para. 1] was simply to make provision for one or other of the three forms of payment mentioned therein and not for a right to maternity leave"; the Committee took the view that it was "unable to accept this suggestion [...] for the following reasons: the wording of paragraph 1 of Article 8 clearly imposed the obligation [...] to provide [...] for women to take leave [...] of at least twelve weeks' and not merely to provide for allowances over that period of twelve weeks [...]". 89. The Committee also found it necessary to affirm that the leave should be maternity leave in respect of one case in which the women concerned were granted only sick leave; the Committee stated that sick leave could not be regarded as maternity leave. 90. The Committee has made a very detailed analysis of the situations arising in order to make sure that a real right to maternity leave exists. Having noted that, in one state, female domestic staff could be dismissed between the end of their fifth month of pregnancy and childbirth (and that this state therefore failed to comply with Article 8 para. 2), it took account "of the links between paragraphs 1 and 2 of this article" and noted that "in [national] law, a pregnant domestic servant could be legally dismissed and thus deprived of the right to paid maternity leave". The Committee drew the conclusion that this state was also failing to meet its obligations under Article 8 para. 1. When it learned, in the following cycle, that such dismissed domestic staff did receive adequate maternity benefits, it took the view that the situation was satisfactory in respect of Article 8 para. 1. 2. Length of maternity leave 91. The Charter is specific: "at least twelve weeks". No shorter period may be regarded as in keeping with the Charter, since this is a minimum: "As the Charter makes clear, the twelve-week period of leave, partly before and partly after the birth, is to be regarded as a minimum, since it is important both to allow the mother sufficient time to prepare properly for her confinement and for her subsequent return to work, and to enable the special needs of the child to be met". The purpose of this period is therefore "both to grant working women increased personal protection in the case of maternity and to reflect a more general interest in public health - ie. the health of the mother and child". 92. In most cases, legislation provides for this length of leave, and there are many cases where the leave is even longer, but details of the regulations may give rise to some cases, sometimes in marginal situations, where the period of twelve weeks of leave is not guaranteed. Since the Committee allows no exceptions to the protection provided by Article 8, the conclusion is inevitably negative in such cases. The cases concerned may involve premature childbirth, sometimes resulting in the impossibility, under the rules for the leave to be divided into periods before and after childbirth, of reaching the minimum of twelve weeks' leave; quite specific categories of women may also be concerned; in another case, the Committee "observed that female employees who did not give their employer at least three weeks' notice of leave for reasons of pregnancy were only entitled to leave comprising the day of childbirth and the ensuing five weeks (Section 18, paragraph 1 of the 1952 Act), which is incompatible with the requirement of a minimum twelve weeks' leave". When it learned in the subsequent cycle that this provision had never been applied, the Committee drew attention to a fundamental rule, namely "that the fact that a rule contrary to the Charter was not applied was not sufficient to render the situation satisfactory".
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