He Supreme Court has issued a ruling that opens the door for public employees who form a single parent family extend their paternity or maternity leave from 16 to 26 weeks. The contentious judges have resolved the case of a teacher from Valladolid and understand that the Public Personnel Statute must be interpreted in this way so as not to discriminate against children born in families with a single parent. For months now another room of the Supreme Court, that of the Socialhas rejected dozens of petitions from single-parent families who are not public employees and the Constitutional Court has several appeals pending on the matter.
In Spain, according to the latest data available, there are around two million single parent familiesthe vast majority made up of women. The case that has reached the third chamber of the Supreme Court is that of a teacher from Valladolid who received a negative response from the Superior Court of Castilla y León when she asked to have her 16 weeks but also the part of the leave that would have corresponded to the other parent: “ Simply adding the periods of both parents is not admissible; one corresponds to the mother and responds to a reason for being and another to the other parent and responds to a different reason,” said the judges of the Valladolid court.
The Supreme Court accepted the woman’s appeal for processing, understanding that it could serve to determine if it was viable. accumulate permissions of the two parents into one in cases of single-parent families. Something processed by the third court as it was a conflict between a public worker and the administration, in this case the Ministry of Education of Castilla y León, based on the regulations for public employees. Other cases outside the public administration have been processed by the Social Chamber, which analyzes everything related to public benefits, and had received a negative response.
In the case of this teacher, the judges apply the Basic Statute of Public Employees and its article 49, which regulates permits for the birth of a child. An article, the Supreme Court recognizes, that “does not expressly contemplate” this duplication of permits in cases of single-parent families, there being a “lack of specific legal provision” because in the event of the death of one of the two parents, for example, it does extend those permissions.
This leads them to apply the criterion of protecting the best interests of the child and conclude that a single-parent family has the right to extend their leave due to the birth of a child. “What is at stake is equality between newborn minors, avoiding the appearance of any form of discrimination depending on whether they were born in one type of family or another,” says the Supreme Court. “The type of family cannot determine the difference in treatment, so that someone born in a single-parent family will enjoy family care, attention and protection for a much shorter time than they would have if they had been born in a two-parent family, 26 weeks.”
The Supreme Court is especially forceful in stating that there is “discrimination between minors that is qualified by the undoubted harm suffered by those who are deprived early of the care that one of their parents provides with their constant presence.” An “especially lacerating” situation due to the lack of justification for this differentiation.
Contradictory rulings from different chambers
This decision of the Litigation Chamber, which analyzes the conflict between a public employee and the administration he works for, collides head-on with what was stated in dozens of orders and sentences. from another room of the Supreme Courtthe Social Security, on the same issue but in lawsuits between mothers and fathers against Social Security. Sentences that have denied this extension of leave for the birth of a child that is now recognized for public employees.
The first of these decisions of the social jurisdiction came in March 2023. The judges explained that, in any case, it would have to be the legislator who changed the rules for this right to be recognized, but that it should not be something that the Supreme Court established in a ruling. For the Social Judges, contrary to what the Contentious Judges interpret, this extension of the permit “is not a requirement derived from either the Constitution or any regulation of the European Union.”
Introducing this change, according to what the Social Chamber said more than a year ago, would be “an intervention of such caliber” that “it is far from what the constitutional organization of the State entrusts to judges and courts. Its function is the application and interpretation of the norm, but not the creation of the law.” That was not a peaceful decision: two of the eight magistrates of the fourth chamber voted against and the speaker had to be changed.
This is a matter that is already in the hands of the Constitutional Court. As elDiario.es has been able to verify, the guarantee court has received dozens of appeals in recent months from women whose appeals to have double maternity leave failed before the Social Chamber of the Supreme Court.
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