In their judgments issued in January, both Tribunals have declared the right of female employees not to be discriminated against for being on maternity leave or leave due to a high risk pregnancy, either in the perception of variable remuneration or for possible promotions.
The first of the judgments was issued by the Supreme Court on 10 January 2017 and resolves the conflict presented by the Union CCOO against the company practice of maternity leave and leave for high risk pregnancies being computed as absences for the purposes of calculating days for entitlement to the payments corresponding to the different incentives.
In the case discussed, female employees who are on this type of leave suffer discrimination and their remuneration is affected at the time of reinstatement, since they do not receive any incentives until the accrual periods, which are computed only from their reinstatement, have passed. In addition, the days worked at the time the leave commenced are not computed by the company. Namely, these employees are considered as having been absent until the date of their reinstatement, at which time the accrual period will once again start to be calculated. According to the Supreme Court, this action “implies direct discrimination and is contrary to the right to maintenance and protection of their working conditions and penalizes the exercise of maternity protection rights, therefore, limiting its fullness.”
The Court analyses the company’s argument that there is no discrimination in the present case since any other employee in a situation of suspension of their employment relationship under Article 45 of the Workers’ Statute is also affected by this measure. However, the Court concludes that it is not possible to equate all other cases of suspension with those of maternity and high risk pregnancy or the situation of any employee who has taken parental leave. The Court protects both situations of maternity leave or leave for high risk pregnancy as well as men who are on paternity leave or maternity leave by assignment and they cannot be in a disadvantaged position to employees who have not taken such leave and considers any measure in this regard discriminatory.
The second of the aforementioned judgments of the Constitutional Court dated 16 January 2017 has resolved the controversy that arose in relation to an employee who was not able to improve her working conditions in the company because she was on leave at the time the vacancy arose due to a high risk pregnancy and, subsequently, for maternity leave. The Constitutional Court considers that the company should have notified the employee of the new vacancy that had arisen and, by not doing so, her right not to be discriminated against due to her gender established in article 14 of the Constitution had been violated, as the reason for her leave derived from her condition as a woman.
In this case, during the employee’s leave due to a high risk pregnancy, the need to hire another person arose in another work centre with a longer working day than that which the employee had normally. At that moment, the employee was not able to opt for this promotion, despite having preference according to the applicable Collective Agreement. The employee was also not allowed to opt for this position after reinstatement following maternity leave. The Court considers that discrimination exists because the only reason she was not offered the position was due to her being on leave due to a high risk pregnancy and then, subsequently, maternity leave and this type of leave is only applicable to women.
Both the Supreme Court and the Constitutional Court defend the maintenance of a professional’s rights relating to both payment and promotion during and following maternity related leave as, to the contrary, this would be a case of direct discrimination based on gender.