The Superior Court of Justice (TSJ) of Catalonia has inadmissible the appeal filed by Renfe against the sentence that ordered the public company to pay 2,882 and 871 euros to a couple of machinists, the money that the operator deducted from a salary supplement during permits for the birth of your baby. The magistrate of first instance Rosa María Doménech concluded that Renfe, attached to the Ministry of Public Works, incurs gender discrimination by reducing the bonus, a variable driving premium, due to absences during maternity and paternity leave.
A judge rules that Renfe discriminates by reducing a salary bonus for maternity and paternity leave
The new judgment that refers to this case, which has been consulted by Diario.es, rejects the public company’s appeal since the amount claimed by the plaintiff workers is less than 3,000 euros and because Renfe did not allege that the issue debated had a general involvement.
“Not having invoked the content of generality of the object of controversy to the demand, without stating either its invocation to the act of the trial, nor having reasoned it to the sentence”, the magistrates proceed to inadmiss the appeal, according to the ruling.
The salary supplement starring in this conflict is the “variable driving premium” received by the driving group, which reaches some “4,500 workers”, according to Renfe figures. After the first conviction, the railway operator explained to this media that employees receive this premium for each day of effective work, according to their service chart, and that Renfe does not consider that the days of maternity leave can be included in those days of effective work.
Although Renfe could return to appeal the sentence before the Supreme Court, sources of the public company explain that it will not do it “and therefore it will be fulfilled.” However, the operator insists that the merits of the matter “are controversial”, but the TSJ did not enter to assess it because it did not even admit the appeal.
Thus, the judges of the TSJ confirm Renfe’s obligation to pay 2,882 and 871 euros, plus 10% interest on late payment, to the two workers, who were defended by the CGT union. The sentence also condemns the public company to pay 600 euros for court costs.
Discrimination in the reduction of the salary plus
One of the plaintiff workers explains to this media his confidence in a new victory in the Supreme Court in the event that Renfe decided to appeal, given the doctrine of the court that cites the very first instance judgment in this case. Magistrate Rosa María Doménech refers to the criteria of the Supreme Court, in a 2017 ruling (downloadable here), which dealt with a similar case and which establishes that “the exercise of maternity leave cannot harm the remuneration of the workers at the time of their reinstatement after the enjoyment of the leave”, “otherwise causing discrimination and unequal treatment” .
The judge concluded that “the contrary interpretation made by the company [Renfe] it is detrimental to the compensation of the plaintiffs for exercising their rights to maternity leave “. The prohibition of discrimination against women in relation to maternity also protects paternity leave in this sense, according to the criterion of the Supreme Court, which understands that “measures to protect the exercise of parental duties are configured as instruments of family co-responsibility that act as active mechanisms for the equality of women and men.”
This Supreme Court ruling also served as the basis for Another similar conviction against global consulting giant Ernst & Young (now EY). In this case, a judge annulled the denial of an annual bonus to an employee due to her absence from work, which was motivated by medical leave during her pregnancy and maternity leave. The sentence is final, given that the consultant did not finally appeal the court ruling.
In CGT they explain that for the moment the public company has not paid the money owed to the couple of drivers and continues to apply the same criteria in the remuneration of this variable plus to its drivers.
Several similar cases have been reported in the union. “Two in Barcelona, one in Galicia and another in Madrid, from a worker who is not a machinist, but an intervener, and who has a variable premium that Renfe reduced for the months of his maternity leave,” they explain in CGT