The Fourth Section of the Contentious-Administrative Chamber of the Supreme Court has issued a ruling in which it recognizes the right of single-parent families in the public service to extend maternity leave from 16 to 26 weeks to avoid discrimination against newborns. The court establishes that this is the interpretation that should be given to the permit regulated in the Public Personnel Statute, and the ruling clashes with another recent ruling by the TS that He rejected mothers doubling their leave for raising children alone.
Now, the Contentious-Administrative Chamber estimates the appeal of a 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 court ruled in favor of the mother, understanding that applying the current regulations to a single two-parent family model was clearly discriminatory. For its part, The Superior Court of Justice of Castilla-León annulled the lower court ruling and confirmed the administrative resolution.
The court addresses this case because of 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 of Justice.
In fact, a little over a year ago in another ruling the Supreme Court itself rejected that single mothers had the right to double maternity leave for raising alone.
Now, the room what interprets article 49 of the Consolidated Text of the Law of the Basic Statute of Public Employees (TRLEBEP) that regulates birth permits for the biological mother and the other parent. This article grants a 16-week leave for her (6 weeks mandatory for both immediately after childbirth).
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 among newborn minorsavoiding the appearance of any form of discrimination based on 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 type of family should not imply a difference in treatment
The sentence, presented by Judge Pilar Teso, explains that “The type of family cannot, therefore, determine the difference in treatmentso 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 Chamber, this is “discrimination between minors that is qualified by the undoubted harm suffered by those whos are deprived of care early that some of their parents provide with their constant presence. It goes without saying that the temporal difference in the number of weeks is not trivial when it comes to protection and care at such a young age.”
Consequently, the interpretation made of article 49 of the TRLEBEP is that which “is in accordance with the Constitution, specifically articles 14 and 39, and the rest of the legal system, respecting equality and the best interests of the minor, by outlawing any form of discrimination based on birth.”
Avoid discrimination against newborns
And we do not see, the court emphasizes, “no 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. It is not even understandable, as we mentioned before, the reasons why some newborn minors may receive the attention and care of one of their parents, public employees, and others not, for a longer period of time. “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 the one caused by the death of the mother, allows the sum of both permits.
“In this case of the parent widowerTherefore, the duration of the permit does extend to the limit of two-parent families, producing the addition or addition that the appellant now postulates for single-parent families, naturally in the remaining part of the permit that, if applicable, the mother used before she died,” the judges emphasize.
The Chamber responds to the question of cassational interest raised that “in the case of single-parent families, the permission provided for in article 49 of the TRLEBEP, must be interpreted, to avoid discrimination against newborn minors and taking into account their constitutionally recognized best interest, in the sense of adding to the leave provided for in section a) (16 weeks), that provided for in section b) (10 weeks by excluding the first 6 weeks). Although, we insist, in this case only the addition of 8 weeks was requested, and granted by the Court.”
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