An officer of the Internal Security Agency, who is in an advanced and at the same time at risk of pregnancy, has asked the Ombudsman for help. Officer ABW, on sick leave up to day 19 September 2019, Reported to the Director of the ABW Personnel Office that as of 12 September 2019 begins to take maternity leave before childbirth. Day 15 September 2019 has been relieved of duty due to the ‘important interest of the formation’.
Following the submission of information on the start of maternity leave, an ABW officer received a reply from the director of the staff office, who indicated that ‘The birth of a medical leave due during pregnancy is interrupted only by a birth from which the period of maternity leave is legally counted’.
The reply may conclude that, in the opinion of the Director of the Bureau of ABW, this situation excludes the possibility of simultaneous medical leave and maternity leave. Nor will it be possible for him to convert medical leave into maternity leave.
According to Article 180(2) Act of 26 June 1974 – Labour Code (Journal of Laws of 2019, item 1040 as amended) – the right to maternity leave is of a subjective nature and is entitled by the law itself
Furthermore, the director of the staff office in his reply drew the attention of ABW officers to the fact that the first day of maternity leave may be only the day on which the medical release ends. However, in the actual state of affairs, the day on which the officer’s medical release ended was after the day of her dismissal.
‘In view of the above, there are no grounds for taking into account your application for maternity leave before childbirth, because the first day of this leave will be the time when you will not have the status of an ABW officer," said the director of the ABW staff office.
In the present case, the Ombudsman made the floor clear that the position of Director of the ABW staff office could not be divided. The Ombudsman stressed that according to Article 180(2) Act of 26 June 1974 – Labour Code (Journal of Laws of 2019, item 1040 as amended) – the right to maternity leave is of a subjective nature and is entitled by the law itself, at the time the child is born.
Consequently, the officer was not required to apply for leave at all. The Ombudsman therefore considers that the fact that an officer is on sick leave must not prevent her from exercising the right to maternity leave before childbirth, while taking into account that such a condition does not arise from the provisions in force.
In addition, the Ombudsman referred to Article 71(2) The Constitution which grants the mother before the birth of the child and after the birth of the child the right to special assistance from public authorities. In this case, the decision of the ABW would not only result in the public authorities not providing specific aid, but would further destabilise the situation of such a person by depriving them of their livelihood.
In the Ombudsman's view, the position of the ABW Personnel Office – in so far as it explicitly refused the officer the right to maternity leave before childbirth when she received her medical leave – clearly violates her rights and freedoms and can constitute discrimination on grounds of sex related to parenthood.
Consequently, the Ombudsman referred to the Head of the Internal Security Agency, Prof. hab. Piotr Pogonowski to verify his position on granting maternity leave to an officer.
WZF.7043.66.2019
Written by Nikol Małaszewska-Dąbrowska
Manager at the Legal Department. From 2011 It provides advice to leading companies from various sectors of the economy. He has extensive experience in conducting comprehensive projects in the field of national and international law. It participates in legal and tax reviews conducted to identify risks. He is also the author of numerous articles on tax issues, published in the industry press.