The court considers indirect discrimination based on gender and appeals to the right of the minor
The Court of Justice of Catalonia (TSJC) has endorsed by the first time to extend maternity leave to a single-parent mother, in a sentence in which the court has ruled for the first time on the matter.
The sentence, consulted by Europa Press this Wednesday, agrees in part with a woman who asked Social Security that in addition to her 16-week maternity leave, she recognized a total of 28 weeksas they would have computed between her and the other parent, if there had been one, following the times established by law before the equalization of permits in 2021 because her baby was born in 2019.
The National Institute of Social Security rejected her request, the woman appealed it and the Social Court 32 of Barcelona agreed with her, but a new appeal -in this case from Social Security- sent the case to the TSJC.
Background
Now, the court has partially confirmed the first ruling: it rejects the main request from Social Security and is in favor of extending maternity leave, but instead of up to 28 weeks it limits it to 24.
Among her arguments, the woman put forward that the Superior Court of Justice of the Basque Country (TJPV) had previously taken a position in favor of extending the permit to single-parent families, while Social Security referred to a ruling by the Superior Court of Justice of the Valencian Community (TSJCV) that had positioned itself against it because the law stipulates that these permits are non-transferable.
Legislation gaps
In this sense, the TSJC notes that the permits are non-transferable but remember that this rule is part of the anti-discrimination policies to “prevent parents from reducing the legal period” at the expense of the mother.
The lawyer from the Col·lectiu Ronda Pau Estévez, who represents the mother in this procedure, has positively valued the sentence, which in his opinion “addresses and corrects gaps in legislation when it comes to satisfying the objective of looking after the interest of the minor and protecting single mothers,” the law firm explained in a statement on Wednesday.
80% of single parent mothers
The court points out in the ruling that almost 80% of single-parent families are headed by women and sees “obvious (statistics aside) the difficulties that this condition entails to guarantee a good upbringing of sons and daughters, as well as to combine family life with work, especially for women”.
The judges consider that the law is “far from fulfilling the constitutional mandate” of protecting children and mothers and therefore of giving sufficient protection to single-parent families with legislation.
Although this rule does not refer to single-parent families, the TSJC believes that “implicitly the will of the legislator” is that maternity and paternity leave be enjoyed in the weeks following the birth.
“Given the legal uncertainty”, the court chooses to agree with the woman because it sees the differential treatment between two-parent and single-parent families as unjustified, because it considers it indirect discrimination based on gender and appealing to the rights of minors.
24 weeks and not 28
The court accepts that the mother extends her permission but refuses to equate it to biparental familiesbecause it remembers that the first six weeks of leave must be enjoyed simultaneously by both parents –therefore in this period “duplication is not possible”– and because these first weeks also have a function of recovery of the mother after childbirth.
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As her baby was born before the equality of permits between men and women, “the other – fictitious – parent would have been entitled to 12 weeks, of which the first four” should have been enjoyed at the same time as the mother.
For this reason, the TSJC refuses to give her 12 more weeks as the first sentence did and instead gives her an extra eight (subtracting the four that she would be obliged to share with the other parent, if any), adding a total of 24 weeks of leave ( 16+8) instead of the 28 that the first error had recognized (16+12).