March 6, 2021

The TC cancels the calculation of the part-time pension for discriminating against women – The Province


Varapalo delconstitutional Court(TC) to Social Security.A sentence known yesterday declares unconstitutional, null and discriminatory the precept of the law that regulates the amount of retirement pensionof part-time workers, reformed in 2013 by decree law. The court not only considers that it violates the right to equality with full-time employees, but also violates the principle of non-discrimination against women, since the vast majority of those affected by part-time contracts are women.

The Constitutional Court itself considers that it is an indirect indiscrimination based on sex because, although the worker who initiated the lawsuit was a man, the rule affects all part-time workers and labor market statistics indicate that the percentage of Women who work at a certain time are clearly superior to men.

The court includes in the text of the ruling the latest figures for 2018 in which 75.5% of part-time contracts are signed by women and over 24% are men. The Canary Islands is no stranger to this situation as it is one of the communities most affected by this type of contract due to the predominance in its economic structure of the services sector -trade and hotel trade- and construction, where there is a high percentage of this type of contracts by the seasonality oftourismand the demand peaks of commerce or construction. The latest data referring to the archipelago shows that there are about 130,000 part-time workers, both discontinuous and temporary, and about 90,000 of them – over 70% – are women. This figure represents 4% of this type of contracts in the country.

At the national level, of the 2,900 part-time contracts made in the first quarter of 2019, 2,162 were signed by women and 738 by men.

On this basis, the ruling of the TC reasons that the basis of calculation established in the law for the retirement pension of a full-time and part-time workers is discriminatory because the latter is in a situation inferior to the first, which for the court violates the constitutional principle of equality. And this discrimination is double for women because it is the group most affected by this type of contract.

In the General Law of Social Security of 1994 and subsequent decree laws, the amount of the retirement pension is determined by two factors: the regulatory base and the contribution period, which in turn serves to set a percentage on the regulatory basis, with which the amount receivable is obtained. For the court there is a difference in treatment in the setting of the contribution period, based on the real time (full-time workers) and for others artificially starting from a reduction value (part-time workers). The method thus implemented punishes, above all, the workers with the least percentage of partiality throughout their working life, that is, those who make up the weakest link in the labor market.

According to the ruling, there is a "differentiation that not only leads to a detrimental result in the enjoyment of Social Security protection for part-time workers, but also affects predominantly women workers, as the statistical data reveal." This predominant affectation to women is expressly considered in the judgment as indirect discrimination, according to the definition included in the law for the effective equality of women and men.

The ruling is in line with the one handed down by the Court of Justice of theEuropean Unionin May for the case of a worker in Castilla y León, who already warned that the Spanish formula could be illegal. However, he left the Castilian-Spanish Superior Court to decide on the matter, something that the Constitutional Court has finally done.

After knowing the ruling, Social Security intends to comply "immediately" with the ruling. On the other hand, the computer services of the National Institute of Social Security (INSS) already analyze what will be the technological changes to be made.

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