Maria Inês Costa (Master’s student in Human Rights, UMinho)

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The implementation of Directive 2019/1158 of June 20, 2019, of the European Parliament and the Council on work-life balance for parents and carers[1], came about two years after the publication (in 2017) of a proposal by the European Commission (EC). In 2008, a directive on maternity leave was proposed, which provided for more time on leave and more rights for mothers; however, in 2015, the Commission withdrew the proposal, basing its decision on the persistent difficulty of reaching an agreement among the co-legislators, while ensuring that it would continue its efforts to propose a broader initiative.[2] Thus, the 2017 proposal was announced as part of a set of measures to be implemented that, based on the policies and protection of the EU acquis and existing European legislation, aimed to improve existing rights, with a focus on equal treatment and gender equality. Hence, the specific objectives to be pursued are mentioned in this proposal: to improve access to leave and flexible working arrangements, and to increase the take-up of leave by men.[3]

 The goal of increasing the number of men taking paternity leave was related to the attempt to mitigate the challenge that most women face in terms of reconciling paid work and domestic work and childcare, since historically they are the primary caregivers. Regarding this subject, the Commission outlined in the proposal the need to encourage men to assume a more equal division of care responsibilities, allowing for the creation, from an early age, of a bond between fathers and children, and according to item (14) of the EC proposal, while maintaining the right of each parent to at least four months parental leave (…), it extends from one to four months the period of paternity leave that cannot be transferred from one parent to the other. Item (20) of the 2019 Directive provides for this provision but sets a shorter minimum period of (non-transferable) paternity leave than the one set in the EC proposal – one to two months – while maintaining each parent’s right to at least four months parental leave as provided for in Directive 2010/18/EU; compensation at an appropriate level, to be implemented by Member States, of at least 66 % of the previous earnings of the parent concerned is also defined.

A right to carer’s leave of 5 working days per year is reflected in the Directive, aiming to provide men and women with caring responsibilities with increased opportunities to remain in the workforce, and in addition flexible working arrangements for carers and parents are regulated: Article 9(1) states that Member States shall take the necessary measures to ensure that workers with children (…) and carers, have the right to request flexible working arrangements for the purpose of care, and that the duration of such working arrangements may be subject to reasonable limitation.

According to 2019 data from the European Commission, the lack of pay transparency is one of the main reasons that makes pay discrimination largely a covert phenomenon. Although pay discrimination is prohibited in the EU, the effective implementation of the right to equal pay for equal work and work of equal value for women and men remains a major challenge. Hence, at the time of the data publication there are only a few court cases related to equal treatment regarding wages[4]. On this matter, the European Gender Equality Strategy 2020-2025 outlined as one of the main goals the proposal of binding measures by the European Commission on wage transparency by the end of 2020, as it is in fact more difficult to detect discrimination or gaps when there is no information available on pay levels (these measures, as far as we are aware were still not proposed)[5]. Indeed, item (43) of Directive 2019/1158 provides that “Member States should provide for effective, proportionate and dissuasive penalties in the event of infringements of national provisions adopted pursuant to this Directive or national provisions (…) and that relate to the rights which are within its scope” and, according to the following item, “the effective implementation of the principles of equal treatment and equal opportunities requires the adequate judicial protection of workers against adverse treatment or adverse consequences resulting from a complaint or from proceedings relating to the rights under this Directive (…)”. In short, this Directive takes a stand for increased protection against both discrimination and violations of workers’ rights, urging Member States to implement strategies in line with this level of safeguards and, at the same time, to strengthen penalties in the event of non-compliance. They are required to transpose the legal provisions of the Directive into national law by August 2, 2022.

Oliveira et al. (2020) observed that the Directive can be seen as being at the intersection between broader EU labour law or social law and EU action for gender equality[6]. Indeed, the EU Charter of Fundamental Rights (CFREU) provides for the principle of equality between men and women in the exercise of civil and political rights, as well as non-discrimination on the basis of gender, in its article 13, consisting of a key legal document underpinning the EU legislative process. The Directive in question both applies to employed workers in general and incorporates a gender equality perspective, as it was created to bring about greater equality between men and women in the labor market[7].

In 2019, the European Trade Union Confederation (ETUC) published a report in which it addresses Directive 2019/1158, the practices of the Member States in achieving the goal of a balance between private and family life and work (i.e., work-life balance) and their critical analysis, as well as future recommendations for the formulation of strategies in this area. This report advocates a life-cycle approach to achieving a balance between work and private and family life, since reconciling work and care is an issue that concerns workers in all areas and extends over the course of their working lives, involving care for children and/or people with health problems.  Thus, it is essential to synchronize the professional life with the individual life cycle and professional demands, and this synchronization is not up to individuals[8] – it is a responsibility of policymakers to pay attention to the data and research that is carried out and, from there, to restructure policies so that they have the desired result.

The enactment of Directive 2019/1158, among other measures, follows the implementation of the European Pillar of Social Rights, which outlines twenty principles in order to make the European Union fairer, the three main ones being equal opportunities, decent working conditions, and social protection. The European Pillar of Social Rights Action Plan, published in 2020, explores the strategies that should be carried out, mentioning the drastic challenges that the Covid-19 virus has imposed on European society – “women who, in 2018 still earned on average 14% less than men, continue to shoulder the bulk of care responsibilities in the household and struggle to enter and remain in the labour market, with consequences also on their pensions (…) With unemployment and inequalities expected to increase as a fallout of the pandemic, focusing our policy efforts on quality job creation, up- and reskilling and reducing poverty and exclusion is therefore essential to channel our resources where they are most needed.”[9]

It is also worth noting the publication in 2020 of a new factsheet by the European Commission addressing the impact of the pandemic on the gender pay gap and how this new scenario has brought to the surface the phenomenon of precariousness among women, who tend to perform less well paid jobs compared to men, and are the vast majority of caregivers for the elderly, while there continues to be a significant disproportion in the sharing of care responsibilities between the two. In this factsheet, one is presented with four main causes of the persistent pay gap between men and women: women doing more unpaid work and dropping their careers, even if only temporarily, to provide care; the segregated labor market that makes it difficult for women to be represented in high-ranking positions, and also the occurrence of discrimination, even though it is forbidden by European law[10].

Aware of the new challenges, the drafters of the European Pillar of Social Rights Action Plan reiterated in the document the European Commission’s action to consolidate best practices and facilitate work-life balance not only through the provision of paid leave, with a positive effect on the employment rate but also through other measures, in line with the provisions of Directive 2019/1158, such as the availability of good quality and affordable early childhood education and care services and long-term care, as they have been shown to have a positive impact on keeping parents, especially women, in the workforce and are important determinants of the pay gap.[11]

According to a joint report by the ILO and Eurofound published in 2017, since telecommuting allows greater temporal flexibility, the workplaces where flexible work arrangements are being developed are also the environments in which telecommuting tends to expand[12]. Indeed, the practice of telecommuting, along with the technological revolution, has been spreading in recent times, but the last year has seen a more significant growth in many workplaces in the face of the urgent need for social distancing to contain the spread of the Covid-19 virus. For İlhan (2021), this relatively new economic paradigm gives rise to several discussions on different topics, including the topic of flexible work structures, and the author considers that this has not been adequately addressed by almost any of the stakeholders around the world. Thus, the author also highlights how the legal uncertainty surrounding the practice of flexible work structures opens room for abuse[13]. In  the same vein, the drafters of the Action Plan asserted that while telework offers a range of opportunities, such as greater flexibility in organizing professional and private life with potential gains in productivity, it also brings a need to reflect on the limits of contractual working time and the balance between work and personal life.[14]

Although telework has its advantages, such as stress reduction associated with commuting to work, especially in areas with high levels of traffic and pollution[15], fatigue and stress still persist, although linked to other factors. In fact the data collected on the experience, in practice, of telework, presented in the ILO and Eurofound report, have shown that there is a blurring of the lines between work and private life and, in this sense, there is a tendency for boundaries to fade between paid work and personal life; individuals tend to engage in long and intensive working hours, and increasingly experience isolation and burnout – these phenomena are all the more worrying considering that regulations on the conditions of remote work have not been developed in all countries[16].

In 2020, Eurofound published a research report, addressing once again the issue of work-life balance in the context of flexible working arrangements and ICT use, which highlights the existence of a large number of countries without provisions on the recording, monitoring and control of working time in teleworking arrangements.[17] Bearing this in mind, at the beginning of 2021, the European Parliament took the initiative to make the right to disconnect legal in the European Union, and called on the European Commission to present a law to this end.[18] The constant connectivity of workers and its negative impacts on their health and well-being was presented as a major disadvantage of telework, and the European Parliament Research Service’s briefing on the right to disconnect (2020) had already explored the common misconception that working longer means producing more, when in fact working significantly longer decreases productivity.[19]

In essence, this right to disconnect, which is already binding in France since 2017, allows workers to not respond to professional contacts if they are made after their working hours; however, in several EU countries it is still a subject of debate, as is the case in Portugal. The adversities that one faces in terms of work-life balance are related to pre-pandemic factors, but they also have to do with the establishment of new paradigms in a world which is constantly changing. For example, telework is likely to have a more beneficial impact on workers and their productivity if framed appropriately, with laws and regulations that prevent labor abuses, in the spirit of Article 153(a) TFEU: “improvement in particular of the working environment to protect workers’ health and safety”.

There is no denying that the scenario that took hold in Europe at the beginning of the year 2020 brought major challenges, both for individual citizens and for governing institutions: economic, social, in terms of health (physical and mental) and also regarding the level of solidarity between countries and within the European Union. The drastic changes have led to the disorganization of people’s lives, which are gradually being restructured – solidarity and collaboration between European institutions, social partners and Member States is urgently required in order to render the European arena more cohesive, thus pursuing the main objective of the European Pillar of Social Rights: fostering a more just European Union.

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[1] Official Journal of the European Union, DIRECTIVE (EU) 2019/1158 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1158&from=PT [14.09.2021]

[2] European Comission, Delivering for parents: Commission withdraws stalled maternity leave proposal and paves the way for a fresh approach, Press Release, 2015. Available at: Delivering for parents: Commission withdraws stalled maternity leave proposal and paves the way for a fresh approach (europa.eu) [14.09.2021]

[3] European Comission, Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, 2017/0085, 2017. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52017PC0253&from=EN [15.09.2021]

[4] European Comission, Pay Transparency – time to see the gap!, 2019, p. 3. Available at: factsheet-pay_transparency-2019.pdf (europa.eu) [15.09.2021]

[5] European Comission, A Union of Equality: Gender Equality Strategy 2020-2025, 2020, p. 11. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020DC0152&from=EN [15.09.2021]

[6] Oliveira, ÁLVARO, et al.,The New Directive on Work-Life Balance: Towards a New Paradigm of Family Care and Equality?, European Law Review Issue 3, 2020, p. 317.

[7] Idem, ibidem, p. 317.

[8] European Trade Union Confederation (ETUC), Rebalance –Trade unions’ strategies and good practices to promote work-life balance, 2019, p. 21. Available at:743-Rebalance-long-EN-web.pdf (etuc.org) [16.09.2021]

[9] European Commission, The European Pillar of Social Rights Action Plan, Employment, Social Affairs and Inclusion, 2021, p. 9.

[10] European Commission, Equal Pay? Time to close the gap, 2020, p. 4. Available at: 2020_factsheet_on_the_gender_pay_gap.pdf (europa.eu) [13.09.2021]

[11] European Commission, The European Pillar of Social Rights Action Plan, Employment, Social Affairs and Inclusion, 2021, p. 25.

[12] Eurofound and the International Labour Office, Working anytime, anywhere: The effects on the world of work, Publications Office of the European Union, Luxembourg, and the International Labour Office, Geneva, 2017, p. 10.

[13] İLHAN, Ümit, A Rapid Implementation of Remote Work as a Strategy in Response to COVID-19: An Examination in Terms of Work-Life Balance, em Management Strategies to Survive in a Competitive Environment, How to Improve Company Performance (pp.335-347), Springer Nature, 2021, p. 336.

[14] European Commission, The European Pillar of Social Rights Action Plan, Employment, Social Affairs and Inclusion, 2021, p. 19

[15] Idem, ibidem, p. 37

[16] Idem, ibidem, p. 40

[17] Eurofound, Regulations to address work–life balance in digital flexible working arrangements, New forms of employment series, Publications Office of the European Union, Luxembourg, 2020, p. 29. Available at: https://www.eurofound.europa.eu/publications/report/2020/regulations-to-address-work-life-balance-in-digital-flexible-working-arrangements [14.09.2021].

[18] European Parliament News, Parliament wants to ensure the right to disconnect from work, 2021. Available at: Parliament wants to ensure the right to disconnect from work | News | European Parliament (europa.eu) [16.09.2021]

[19] European Parliament, The right to disconnect, EPRS Briefing, 2020, p. 2. Available at: The right to disconnect (europa.eu) [17.09.2021].

Picture credits: 089photoshootings