The Contentious-Administrative Chamber of the Supreme Court declared that, in the case of single-parent familieshe leave for the birth of a child provided for by the Organic Status of the Civil Service must add, to the 16 weeks of maternity leave, 10 of the 16 weeks granted to the other parent when the family is two-parent.
“Which The issue is the equality of minor newborns“, avoiding the appearance of any form of discrimination based on birth and any other personal or social condition or circumstance (article 14 of the Spanish Constitution), depending on whether one is born into a type of family or into a other”, specifies the judgment of judge Pilar Teso was a speaker.
This interpretation of article 49 of the Organic Statute of the Civil Service (EBEP) puts an end to the disparity of criteria supported by the Contentious-Administrative Courts and the Higher Courts of Justice on the extension of birth leave when the family is single-parent.
The Chamber agreed with a teaching leader from Castilla y León who defended that, with regard to single-parent families, the extension of maternity leave provided for in paragraph a) of article 49 of the EBEP (16 weeks) should be allowed. by its accumulation with the leave of the other parent provided for in article c) of the same provision (also 16 weeks), excluding the part (6 weeks) that both parents must necessarily take immediately after the birth of the child.
The decision is based on the fact that Article 49 of the EBEP does not provide for the extension of maternity leave in cases of single-parent families. “It does not authorize, impose or prohibit that the maternity leave of article a) is added, or not, to the leave of the other parent regulated in article c) of the same legal provision, always in the applicable part, which is, excluding the first six weeks of compulsory rest” that both parents must take together.
The Chamber observes that, according to the interpretation of the Superior Court of Castilla y León and the administrative application of the EBEP, newborns in two-parent families They are supported for 26 weeks (6 weeks for both parents and 20 weeks when both parents work), while Concerning single-parent families, leave will only be extended to 16 weeks maternity leave in section a).
This this difference “does not seem compatible with the Constitution, nor with European Union law, nor with international standards”declares the Contentious-Administrative Chamber with reference to the EU Charter of Fundamental Rights and the United Nations Convention on the Rights of the Child.
Based on the best interests of minors, the High Court indicates that “equality requires avoiding all forms of discrimination”.
“The type of family cannot therefore determine the difference in treatmentso that a person born in a single-parent family benefits from family care, attention and protection (established by article 68 of the Civil Code) for a much shorter period, 16 weeks, than if he or she had been born in a two-parent family. , 26 weeks.”, he adds.
It’s a discrimination between minors“which is nuanced” by the incontestable harm 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 is not trivial when it comes to protection and care at such a young age,” he emphasizes.
“Lacerate”
The Supreme Court considers this situation “particularly heartbreaking” because of the “absence of any justification”.
“It is not that this is a justification that cannot be considered objective or reasonable, it is that no justification appears. Keep in mind that the need for care of minors is the same in all cases, so the treatment must be the same,” he says.
“We do not even understand the reasons why minor newborns can receive the attention and care of one of their parents for a longer period of time,” public employees and others not“, he adds in reference to workers outside the public service.
The Contentious-Administrative Chamber mentions, in this regard, the judgment rendered on March 2, 2023 by another chamber of the Supreme Court, the Social Chamberwhich, in the case of a worker who is not a civil servant and who forms a single-parent family, spoke in the opposite direction to the accumulation of permits.
The decision known this Friday indicates that “the time elapsed since the judgment of the Social Chamber, in conjunction with the evolution of social reality (article 3.1 of the Civil Code) concerning the types of family, as well as the profusion and disparity of decisions in our contentious-administrative jurisdictional order, explain the difference and the estimated meaning of our decision.”
“The system of sources must be applied, in this case the Constitution and the law, in addition to the impact of the aforementioned European and international standards as well as the general principles of law, with particular care to avoid infringing the rights fundamental.” insists the Contentious-Administrative Chamber.
The current social reality reflects “a new type of family that cannot be ignored,” he concludes.
