B.T. v. RUSSIA

In this case, the applicant alleged that the refusal to grant parental leave based on the "absence of evidence that the child lacked maternal care for objective reasons" was a violation of Article 14 in conjunction with article 8 of the European Convention of human Rights.

The applicant submitted that the child’s mother had formally refused to bring up their child and had instituted proceedings for divorce asking the court to determine that the child should reside with the applicant, her father, and to grant her visiting rights once a week. This clearly demonstrated the mother’s unwillingness to participate in the child’s upbringing, except for a few hours once a week, which objectively demonstrated that the child had had no maternal care. The applicant had therefore had no choice but to ask for parental leave. However, his request for parental leave had been rejected and he had been dismissed from his post. He had therefore been subjected to discrimination on grounds of sex, and his right to respect for his family life had been violated. [para. 30].

Relying on Konstantin Markin v. Russia ([GC], no. 30078/06, ECHR 2012) and confirming the findings in Gruba and Others v. Russia (nos. 66180/09 and 3 others), the European Court of Human Rights (ECtHR) found that there had been a violation of Article 14 in conjunction with Article 8 of the ECHR.

In its assessment, the ECtHR held that, as regards parental leave and parental leave allowances, men were in a comparable situation to women. Indeed, in contrast to maternity leave, which was intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wished, parental leave and parental leave allowances related to the subsequent period and were intended to enable the parent concerned to stay at home to look after an infant personally. Whilst being aware of the differences which might exist between the mother and the father in their relationship with the child, the Court concluded that, as regards the role of taking care of the child during the period corresponding to parental leave, men and women were “similarly placed”, [Para 38].

The ECtHR went on to find that in refusing to grant parental leave to the applicant, the domestic authorities did not refer to any circumstances showing that a temporary departure on parental leave of police officers holding positions similar to the applicant’s (head of the road police) would undermine the operational effectiveness of the police. The authorities therefore failed to perform any balancing exercise between the legitimate interest in ensuring the operational effectiveness of the police on the one hand, and, on the other hand, the applicant’s right not to be discriminated against on grounds of sex as regards access to parental leave. [Paras 42 - 43].