The TCo rejects that the difference in treatment regarding the duration of maternity and paternity leave and benefits violates the principle of equality before the law since they pursue a different purpose: the health of the working woman in one case, and the reconciliation of personal, family and work life in the other.
Mr. Álvarez Peralta, together with the association PPiiNA (platform for equal and non-transferable birth and adoption leave) filed an appeal for protection before the Constitutional Court in order to determine whether the decision of the INSS, confirmed in court, not to grant him the right to enjoy the paternity benefit after the birth of his child with the same duration as that established for maternity leave violates the right to equality before the law and not to suffer discrimination on the basis of sex (Const art.14). What is really at issue iswhether the regulations applicable at the time of the causal event (which recognized a duration of paternity leave and the corresponding benefit of 13 days, as opposed to the 16 weeks provided for maternity leave), can be considered to be in accordance with the fundamental right to equality and non-discrimination.
The TCo begins by recalling that the principle of equality does not require equal legal treatment in all cases, regardless of any differentiating element of legal relevance. Not all unequal regulatory treatment is an infringement of Art. 14 of the Constitution, but only those that introduce a difference between situations that can be considered equal, without there being an objective and reasonable justification for it. It also recalls that for the difference in treatment to be constitutionally lawful, the legal consequences deriving from such a distinction must be proportionate to the purpose pursued (TCo 22/1981; 117/1998).
The primary purpose pursued by the legislator through the suspension of the maternity contract in the event of childbirth (biological maternity), is the protection of the worker's health without detriment to her labor rights, and the substitution of labor income during the period of rest through the economic benefit of Social Security. The paternity leave of 13 days (according to the legislation applicable on the date of the causal event) and the corresponding economic benefit, pursue a different purpose, which is to promote the reconciliation of personal, family and work life by encouraging the co-responsibility of mothers and fathers in the care of the children.
The protection of the health of working women during and after pregnancy is a requirement of art. 39.2 of the Constitution, imposed by the international commitments assumed by Spain, which oblige it to adopt the necessary measures for pregnant workers to enjoy maternity leave in order to protect women's health (ILO Convention No. 13, art. 10.2; Directive 92/85/EEC, art. 8). On the other hand, the establishment of paternity leave has not been imposed to date by any rule of international law that binds our country or by European Union law.
Maternity, and therefore pregnancy and childbirth, are a differentiated biological reality of obligatory protection, derived directly from art. 39.2 of the Constitution, and therefore the advantages or exceptions that it determines for women cannot be considered discriminatory for men (TCo 109/1993). The CJEU has ruled in the same sense (CJEU 19-9-13, C-5/12).
Therefore, the CoA dismisses the appeal.
Note
The judgment contains a dissenting opinion by Judge María Luisa Balaguer, who considers that the appeal should have been upheld and the legal precepts in question declared unconstitutional, as they involve indirect discrimination against women in access to the labor market and promotion in employment.
Suspension of the contract due to paternity
| Suspension of the contract due to paternity | |
|---|---|
| Causal event | birth, adoption, guardianship for the purpose of adoption or foster care |
| Beneficiaries | - In case of birth: the other parent. - In case of adoption, foster care or foster care: only one parent at the choice of the interested parties. If one of them takes maternity leave in its entirety: the other parent. |
| Duration | - 5 uninterrupted weeks, extendable in the event of childbirth, adoption, foster care or multiple fostering by two more days for each child from the second. - it does not violate the right to equality and non-discrimination on grounds of sex to establish a shorter duration than that established for maternity leave (TCo 17-10-2018, Rec 4344/17). |
| Enjoy | - uninterruptedly from the end of the childbirth leave (2 calendar days unless the collective agreement expressly extends it) until the end of the suspension of the maternity contract or immediately thereafter. - However, in case of agreement with the employer, the last week can be taken independently at another time within the 9 months remaining after the birth of the child, judicial or administrative resolution. The employee is obliged to inform the employer, in due time, of the beginning of the leave. |
| Paternity benefit | |
|---|---|
| Requirements | - be affiliated and registered with the Social Security; - accredit a minimum period of 180 days of contributions within the 7 years immediately preceding or, alternatively, 360 days during their working life. |
| Amount | 100% of the Regulatory Base. In the event of interruption of the suspension, when it is resumed during the last week, the amount is the same as that which would have corresponded to the first fraction of rest. |
| Incidence of other situations | - the paternity period is over, the employee is in a situation of paternity. ITIf the employee meets the requirements for IT, payment of the IT subsidy begins, without the time of the paternity leave being deducted. If the TD situation is prior to the paternity leave: the right to TD is maintained until the start of the leave. Once the paternity benefit has been received, the payment of the TD benefit is resumed without deducting the time of the paternity leave; - during paternity leave shall be terminates the contractThe interested party continues to receive paternity benefits until they are terminated, at which point he/she becomes legally unemployed; - termination of the contract of those who have had their status as a IT for going on paternity leave:
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