On October 4, 2011 the Constitutional Court of the Republic of Belarus took a decision “On some issues of parental-leave legal regulation” (a reporting judge – Valentina V. Podgrusha). The decision was taken on examination of the appeal by Ms K. who had questioned the unavailable parental leave to care for a child up to 3 years for a father, another relative of the child in case of his mother’s enterprising as a self-employed entrepreneur.

 As far as the mother of the child is a self-employed entrepreneur, she is neither subject to article 185 of the Labour Code nor entitled to a social parental leave to care for a child up to 3 years. The right to paternity leave is considered to be a derivative one from the right to maternity leave, so such a parental leave is not available for a father or another relative of the child.

 The Constitutional Court found unlawful this approach to understanding of the substance of the right of a working father, another relative of the child, actually caring for him, to social parental leave as derived from his mother’s right to the specified social leave. The right of a working father, another relative of the child, actually caring for him, to social parental leave is a separate right, the exercise of which is guaranteed by the state.

 Having analysed the rules of the Constitution, the Labour Code and other legislative acts of the Republic of Belarus, the Constitutional Court came to the conclusion that there is a legislative gap in the regulation of relations developing when the social parental leave to care for a child up to 3 years is not granted to his father, another relative in case of his mother’s enterprising as a self-employed entrepreneur. As a consequence, neither the constitutional principles of legal equality, proportionality of restrictions of the citizens’ rights and freedoms, nor the rules guaranteeing the right to work and social security, to non-discrimination in employment and related relationships are met. Nor social justice, effective protection of the family, maternity, paternity and childhood are provided.

 The Constitutional Court found that this gap should be filled to the intent that a father, another relative of the child should be entitled to social parental leave to care for a child up to 3 years also in case of his mother’s enterprising as a self-employed.

The Council of Ministers was proposed to prepare a draft law envisaging the introduction of relevant amendments to the Labour Code, the Law “On State Benefits to Families with Children” and submit it to the House of Representatives under the established procedure.