Dung Thi Thuy Nguyen v. The Netherlands

Dung Thi Thuy Nguyen worked part-time as a salaried employment agency worker as well as together with her husband as a co-working spouse in his enterprise. For her salaried employment, Nguyen was insured under the Sickness Benefits Act (ZW), and for work at her husband’s enterprise she was insured under the Invalidity Insurance (Self-Employed Person) Act (WAZ). When Nguyen applied for maternity leave in 1999, she received benefits from her ZW insurance, but her WAZ insurance denied her coverage because of an “anti-accumulation clause” which allowed payment of benefits only insofar as they exceed benefits payable under the ZW policy. Nguyen objected to the withholding of her benefits and applied for review with the Breda District Court, who dismissed the complaint. The Central Appeals Tribunal upheld the lower judgment on appeal, stating that the WAZ insurance policy did not result in unfavorable treatment of women as compared to men. Nguyen’s complaint to the Committee cited a violation of article 11, paragraph 2 (b) of the Convention on the Elimination of All Forms of Discrimination against Women under which the State party is obligated to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowance. The Committee held that it is state’s discretion to determine the appropriate maternity benefits within the meaning of article 11 for employed women, and separate rules for self-employed women accounting for fluctuated income and related contributions did not amount to a violation. The dissent, however, argued that the law of the Netherlands which provides for a financially compensated maternity leave for women who are both salaried and self-employed does not take into account the situation of these women who work more hours per week than a full-time salaried employee entitled to full maternity benefits. The anti-accumulation clause, therefore, constitutes indirect sex-discrimination because the policy assumes that mainly women work as part-time salaried employees in addition to working as family helpers in their husband’s enterprises.