This case was one of two that drew considerable attention when referred to, and ruled upon by, the CJEU.  In this case, there was no dispute that the complainant suffered from a disability and the complainant gave evidence that her employer was supportive of her throughout the process of the surrogacy including her needs for leave.  However, when she sought to take maternity leave or adoptive leave she was refused as she had neither given birth to her daughter nor adopted her.

The Equality Officer, on reading the initial papers, considered that a referral to the CJEU may be appropriate.  He held an initial hearing, requesting further submissions, and subsequently referred the matter to the CJEU.  Following receipt of the CJEU Ruling he held a hearing for closing arguments with regard to the Judgment and subsequently issued this Decision.

The CJEU ruled that both the Equal Treatment Directive, 2006/54/EC and the Framework Directive, 2000/78/EC must be interpreted as meaning that

• a refusal to provide paid leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement does not constitute discrimination on grounds of sex and
• a refusal to provide paid leave or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability

The Equality Officer decided he was compelled to find that no unlawful discrimination took place in terms of the complainant’s treatment and her claim was unsuccessful.

To read the full case decision:

http://www.workplacerelations.ie/en/Cases/2014/July/DEC-E2014-050.html