“The type of family cannot determine the difference in treatment.” It is a phrase that may seem obvious or even indifferent to many, but in the order issued by the Contentious-Administrative Chamber of the Supreme Court (TS) and released yesterday that statement summarizes the right to extend from 16 to 26 weeks the birth permit that many single parents had been wanting to read for some time. In fact, the ruling of the third chamber of the TS recognizes this for a public employee, a teacher from an institute in Valladolid named E.who took his return to the classroom to court after his first four months of leave.
E. asked for eight more weeks, up to 24, because there was no other parent at home who could provide that first and necessary attention to the child. The Provincial Directorate of Education of Valladolid denied it. She appealed that decision. A Valladolid Contentious-Administrative Court ruled in favor of the mother when it understood that applying the current regulations to a single two-parent family model It was clearly discriminatory.. The Superior Court of Justice of Castilla y León (TSJCyL) subsequently annulled the lower court ruling.
The judges of the High Court They ‘give’ E. now 26 weekslike any two-parent family (does not double until 32 weeks because the obligatory section, the six weeks immediately after childbirth, are individual). In Spain there are almost two million single-parent families and more than eight out of ten are made up of a woman alone.
The Constitutional Court will resolve
The clash of criteria between chambers of the High Court is more than notorious. For a year and a half, the Social Chamber has ruled on dozens of cases – the first was in March 2023 – and has not recognized the right to extend the time off from work due to the birth of a baby for other groups of workers. who appealed to Social Security. The court considers that it is the job of the legislator and not of its judges to modify this public benefit. These rulings have also been the reason for several appeals that are still pending resolution at the Constitutional Court and that may end up setting a precedent in this matter.
On the other hand, according to the ruling of this October 18, for those in charge of the Contentious Chamber, who do recognize the option of extending the leave to public employees, “it is a form of discrimination against the newborn” to deprive him of care that he needs in the first stages of life and this is not a “trivial” matter, he determines.
“The type of family cannot determine a difference in treatment” in the care that a newborn receives, dictates the third chamber of the TS
The judges of the Superior Court of Justice of Castilla y León rejected the teacher’s request and argued that “simply adding the periods of both parents is not admissible; one corresponds to the mother and obeys a reason for being and another to the other parent and responds to a different reason. The third chamber of the TS says on the contrary that in the Public Employee Statute there is no room for discrimination against children and the best interests of the minor take precedence when the two permits are “accumulated” for the same worker, in this case the teacher from Valladolid who claimed it. .
Specifically, the Contentious Magistrates apply article 49 of the Basic Statute of Public Employees and state that it “does not contemplate” the need to double the sick leave in cases of single-parent families, there being a “lack of specific legal provision.” On the other hand, it contrasts, it does consider the case that one of the parents dies and then extends these permits for public employees when they become widowed.
The phrases from the Supreme Court order, whose speaker was Judge Pilar Teso, are valid and can be extrapolated to all families regardless of their form: “What is at stake is equality between minors, avoiding the appearance of any form of discrimination depending on whether you were born into one type of family or another […]. “A person born in a single-parent family enjoys the care, attention and family protection (established in article 68 of the Civil Code) for a much shorter period of time (16 weeks) than he would have had if he had been born in a two-parent family (26 weeks)”, he emphasizes. .
«Early deprivation»
The differentiation between family units is not “justified” and it is “especially lacerating,” the resolution explains, that “there is discrimination between minors that is qualified by the undoubted harm suffered by those who are deprived early of the care they provide with their presence.” constant one of their parents. The principle of equality is recognized in the Spanish Constitution, he questions. For this reason, it establishes that this is the interpretation that must be given to the permit regulated in the Public Personnel Statute from this moment on and also admits that to date there is a disparity in criteria also between the superior courts of justice of each community. .
Equalization of rights
It is not a trivial matter for the family lawyers consulted nor for associations such as the Bad Moms Club which has included this proposal in the Family Law that the Government has designed and which is still in the amendment phase. Also the PP of Alberto Núñez Feijóo included the request in an additional provision of its Conciliation law registered two weeks ago for discussion in the Congress of Deputies.
The president of the association I don’t give up and founder of the Club, Laura Baena, affirms to ABCthat this transcendental decision of a courtroom of the Supreme Court may mean a “lever” that “pushes” so that the rest of single working parents can match their permits. Baena recalls that it is a demand that has been in force for decades and that until now the executives have not satisfied.
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