End to the clash of criteria between chambers (III and IV) of the Supreme Court. Given the dozen appeals filed by single mothers who are employed by others, the Plenary Session of the Constitutional Court upheld this Wednesday, November 6, in a ruling for which the judge was the speaker. María Luisa Segoviano Astaburuagathat it is unconstitutional that single biological mothers cannot extend the 16 weeks of leave, as was recently achieved E., teacher in Valladolidfor public employees. The Supreme Court declared that E. could extend her weeks up to 26 (the teacher claimed 24) always by virtue of the defense of the best interests of the minor.
In this case, the question of unconstitutionality was promoted by the Social Chamber of the Superior Court of Justice of Catalonia in relation to article 48, sections 4, 5 and 6, of the consolidated text of the Law on the Statute of Workers (ET ), approved by Royal Legislative Decree 2/2015, of October 23, in connection with article 177 of the consolidated text of the General Social Security Law (LGSS), approved by Royal Legislative Decree 8/2015, of October 30 October.
Discriminates against a portion of newborns
The Superior Court of Justice of Catalonia considered that the questioned legal provisions represented discriminatory treatment towards minors belonging to a single-parent familysince they imply that they will receive less care time than those born in a two-parent family, even though they have identical needs. Also that, although the precepts questioned are neutral in nature, there was indirect discrimination based on sex, since the negative and unfavorable impact of this regulation would have a more intense impact on working women, who mostly head single-parent families.
The TC considers that in a case like the one it analyzes, in which there is only one parent, who is the biological mother, the suspension of the employment contract with reservation of position (as well as the corresponding economic benefit from social security, when meet the affiliation and contribution requirements provided for in the LGSS) only the worker, a biological mother, is recognized for 16 weeks, of which six uninterrupted weeks are mandatory immediately after childbirth.
Difference in treatment: Article 14 of the EC prevails
The purposes pursued by the current regulation when equating the birth and child care permits of the worker, biological mother, and the other parent are conciliation and real and effective equality between men and women. But what is now being proposed does not call into question this comparison, but rather the fact that the rule does not provide for the possibility of the first extending her leave for the period that would have corresponded to the other parent, if any, and the impact that This omission affects children born in single-parent families. It is an omission without justification, says the TC that puts an end to a years-long conflict.
The ruling explains that the legislator has a wide margin of freedom in the configuration of the Social Security system. However, once a certain protection tool is in place, its specific articulation must respect the requirements derived from article 14 of the Spanish Constitution and which governs the principle of equality. and this is it what the legislator does not do, by introducing – through his omission – a difference in treatment due to birth among children born in single-parent and two-parent families. “The Government completely ignores the negative consequences that such a measure produces on children born in single-parent families,” the TC advances in an information note.
The above leads to considering the question of unconstitutionality, maintaining the validity of the precepts and corresponding to the legislator to carry out the pertinent modifications to repair the violation of article 14 of the Magna Carta, in relation to article 39 (“The public powers ensure the protection social, economic and legal of the family. The public powers also ensure the comprehensive protection of children, who are equal before the law regardless of their affiliation, and of mothers, regardless of their marital status. “Once unconstitutionality has been declared, it is not necessary to analyze the rest of the allegations in the order raising the question of unconstitutionality.”
16 + 10 weeks (there is no second parent)
Without prejudice to this, the Constitutional Court considers it necessary to specify that, as long as the legislator does not rule on the matter, in single-parent families the permission referred to in arts. 48.4 ET and 177 LGSS must be interpreted in the sense of adding to the leave for the biological mother (16 weeks), the one provided for a different parent (10 weeks, excluding the first 6, which must necessarily be enjoyed uninterruptedly and immediately after at birth).
Judge Enrique Arnaldo Alcubilla and Judge Concepción Espejel Jorquera have announced the formulation of a concurrent private vote.
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