The TC does not see discrimination that paternity leave lasts less than maternity leave

The TC does not see discrimination that paternity leave lasts less than maternity leave


That the duration of paternity leave does not match that of maternity It is not discriminatory for man. This is established by the Constitutional Court (TC) in a ruling, which has been Judge Andrés Ollero, in which concludes that "the attribution of maternity leave, with the correlative provision of social security, to working women , with a duration longer than that which is recognized to the father, is not discriminatory for the male. Motherhood, pregnancy and childbirth are differentiated biological realities of obligatory protection, which refers to the comprehensive protection of mothers. Hence, the advantages that are determined for women can not be considered discriminatory for men. "

The court dismisses the appeal filed by a parent and by the association Plataforma for equal and non-transferable permits of birth and adoption against a ruling of the Madrid High Court of Justice that denied that paternity leave was equated with maternity leave, with a duration of 16 weeks.

The plaintiff of amparo enjoyed paternity leave for 13 days and received the corresponding economic benefit from the Social Security on the occasion of the birth of his son on September 20, 2015, under the legislation then in force.

The TC points out that there is "a prolonged social and political debate about the advisability of extending the duration of paternity leave", even to the point of equating it with maternity leave, for "promote a more equitable distribution of family responsibilities between men and women, thus allowing an early bond between parents and children to be created. "And, therefore, he admits the" relevant and general social or economic repercussion "of the lawsuit filed, but remember that with the law in hand the National Institute of Social Security acted correctly by denying the 16 weeks of paternity leave claimed by the appellant in Amparo.

The purpose pursued by the legislator in labor protection and social security dispensed in the event of childbirth "is different in attention to whether it is mother or father," the magistrates stress. In maternity, "the primordial purpose that the legislator has always pursued", recalls the TC- is the protection of the health of working women ". Therefore, he adds, "the suspension of the employment contract with reservation of employment of the labor legislation intends preserve the health of the pregnant worker without detriment to her labor rights, Y the economic benefit for maternity of the social security attends to replace the loss of labor income of the working woman during that period of rest (mandatory at least in the six weeks immediately following the birth). "

While, in the case of paternity leave, the objective is "to favor the reconciliation of family life and the professional life of the parents" and to encourage "a more equitable distribution of family responsibilities between men and women and allow a bond to be created early between parents and children ".

But that parents should be jointly responsible for the care of their children does not mean, emphasizes the TC, that the different duration of the permissions damages the right to equality before the law. Hence "the difference in treatment between men and women -parents and mothers- established by labor and social security legislation", he concludes.

The ruling has a private vote of Judge Maria Luisa Balaguer, who believes that the appeal should be granted to the appellant to understand that "the unequal duration of permits, in the proportion in which such inequality is provided in the regulations (thirteen days to 16 weeks), It is unjustified and discourages the hiring of women of childbearing age ", provoking "a clear effect of indirect discrimination of women, associated with the fact of motherhood".

"The sons and daughters, above all, in strips of very low age," the magistrate maintains, "are not the mother's preferential responsibility, nor does the bond with her deserve a greater degree of protection than the parent-child bond. the sentence consolidates a division of roles in care that can and should be revised, to adapt it to a more current vision and coherent with Article 9.2 CE, of what is material equality between the sexes ".

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