Maternity protection also for self-employed - a contribution to equality between women and men
Written By
Counsel
Germany
I am a licensed specialist for employment law, and advise national and international organisations on all aspects of collective and individual labour law, and represent them in court.
The percentage of women founding and managing start-ups and small and medium-sized enterprises is still low. Too low. The second chamber of the German Parliament, the German Federal Council (Bundesrat) considers that one solution would be to guarantee sufficient cover for self-employed women during pregnancy and after childbirth. The German Federal Council are therefore campaigning for the German Federal Government to establish statutory maternity protection benefits for the self-employed equivalent to those in existence for employees.
Background - the problem
In Germany, maternity protection and maternity benefit are not granted equally to all expectant mothers. Only mothers who work in an employment relationship are protected by the Maternity Protection Act. Special regulations exist for civil servants, judges and soldiers. According to the Maternity Protection Act, pregnant women can remain on maternity leave for six weeks before the expected date of birth and up to eight weeks after the birth. During the protection period after the birth, women are generally not allowed to work and can also claim compensation in the form of maternity pay during the maternity leave and a supplement to maternity pay.
Self-employed women, on the other hand, often have to make their own financial provisions. Where self-employed women have statutory health insurance and are entitled to sick pay, they are entitled to apply for maternity benefit. However, most self-employed women are covered by private insurance rather than statutory health insurance and are therefore not entitled to maternity benefit unless they have made appropriate provisions at an additional cost.
However, as young female entrepreneurs in particular have often not built up sufficient reserves within their business for such provisions, absences due to pregnancy and childbirth can lead to loss of leadership, decrease in turnover, or even insolvency. Additionally, many female entrepreneurs, particularly those who in skilled trade whose work is largely physical, expose themselves to health risks in order to protect their company.
The resolution of the German Federal Council
At its meeting on 26 April 2024, the German Federal Council emphasised the need to reduce the disadvantages for self-employed women during pregnancy and after childbirth. The aim is to establish maternity protections which are comparable to the protection afforded to employees.
A central point of this resolution is the demand for financial security for self-employed women during pregnancy and after childbirth. The German Federal Council is in favour of the German Federal Government creating additional maternity protection benefits and ensuring funding to do so. This could be done, for example, by creating a system that enables solidarity-based financing, similar to the existing U2 maternity contribution for employers.
Another important aspect emphasised in the resolution is that equivalent maternity protection could also be achieved through the promotion of company substitution options. In small companies, and in the skilled trades in particular where the absence of self-employed women due to pregnancy and childbirth can lead to considerable operational challenges, company substitution options could make an important contribution.
What happens next?
The German Federal Council's demands reflect the fundamental principles of equality and the protection of mothers, as enshrined in Article 6 of the German Basic Law. In addition, Directive 2010/41/EU already obliges Member States to take measures to ensure that self-employed women receive adequate maternity protection during and after pregnancy, and during breastfeeding.
However, as resolutions of the German Federal Council are political recommendations and not legally binding, the German Federal Government must first consider the resolution and then decide whether and to what extent it wishes to implement the demands or proposals contained therein. Only then will a legislative proposal be made. There are no fixed deadlines for this.
Conclusion
The German Federal Council's resolution provides an important impetus for the creation of a fairer and more equal maternity protection system in Germany. Equal maternity protection for self employed women is not only a question of fairness, but also a decisive step towards a modern and fair working environment. It remains to be seen whether the German Federal Government will take this as an opportunity to implement a gender-equitable economic promotion and livelihood protection programme.
