The Fourth Section of the Contentious-Administrative Chamber of the Supreme Court has issued a ruling in which it recognizes the right of public employees who form a single-parent family to extend their leave of absence due to the birth of 16 weeks to 26 to avoid discrimination against newborn minors. The court establishes that this is the interpretation that should be given to the permit regulated in the Public Personnel Statute and contradicts dozens of previous cases in which the Social Chamber ruled against this extension when it does not involve public employees. That would be a decision highly sought after and demanded by single mothers (also single fathers) for years. The Constitutional Court has several appeals pending on its table to these decisions against the right that today the Litigation Chamber does recognize for public employees.
Specifically, the Court considers the appeal of this teacher to whom the Provincial Directorate of Education of Valladolid rejected her request to extend maternity leave from 16 to 24 weeks because she was a single-parent family. A Contentious-Administrative court ruled in favor of the mother when it understood that applying the current regulations to a single two-parent family model (the traditional model but in profound change in Spain) It was clearly discriminatory.. For its part, the Superior Court of Justice of Castilla-León annulled the lower court ruling and confirmed the administrative resolution.
Disparity of criteria
The Supreme Court (TS) addresses this case due to the controversy that exists in this matter and due to the disparity of criteria on this issue that exists in the chambers and in the different superior courts. To do this, it interprets article 49 of the Consolidated Text of the Law of the Basic Statute of Public Employees (TRLEBEP), which regulates birth permits for the biological mother and the other parent. This article grants a 16-week permit for her (6 weeks mandatory for both parents immediately after delivery).
He adds that of all the interests that converge in the characterization and organization of these permits, the interest of the minor stands out above them and this is so “because, in any case, what is at stake is equality between newborn minors, avoiding appearance of any form of discrimination due to birth, and any other personal or social condition or circumstance (article 14 of the Constitution), depending on whether one was born into one type of family or another.
The sentence, presentation of Judge Pilar Tesoexplains that «the type of family cannot, therefore, determine the difference in treatment, “so that someone born in a single-parent family will enjoy family care, attention and protection (established in article 68 of the Civil Code) for a much shorter time, 16 weeks, than if they had been born in a two-parent family, 26 weeks.”
For the room, This is “discrimination between minors.” which is qualified by the undoubted damage suffered by those who are deprived early of the care that one of their parents provides with their constant presence. It goes without saying that the temporal difference in the number of weeks “It is not trivial when it comes to protection and care at such a young age.”
The court does not find “any circumstance that provides a reasonable justification to explain the difference in legal effects between both comparable legal situations, between newborn minors depending on the type of family, single-parent or two-parent, for the purposes of the much-cited article 49. They are not even understandable, as we mentioned before, the reasons why newborn minors may receive care for longer and the care of some of their parents, public employees and others who are not. “Everyone must receive the care and attention referred to in article 68 of the Civil Code, to the same extent, without the interpretation of the Law leading us to conclusions that harm equality.”
The ruling recalls that the only case of a single-parent family that the law has expressly regulated, which is that caused by the death of the mother, allows the sum of both permissions.
«In this case of the widowed parent, therefore, the duration of the permit does extend to the limit of two-parent families, producing the sum or addition that the appellant now postulates for the single-parent family, naturally in the remaining part of the permit that , in her case, the mother used it before she died,” the judges emphasize.
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