On October 1, 2023, the modification of article 247 of the General Social Security Law approved on an “urgent” basis by Royal Decree Law 2/2023 comes into force in Spain. This change equates part-time work with full-time work, reducing the gender gap and establishing a new sustainability framework for the public pension system.
Unconstitutional and void
The modification has been imposed by the doctrine resulting from the ruling of the Constitutional Court that declared the unconstitutionality and nullity of the article in question. The reason? Its negative effect on the quantification of the pensions of part-time workers, particularly women.
Said article, in its original wording, established that part-time or part-time workers only contributed half a day or part of each day of work.
Broadly speaking, this meant that a part-time or part-time worker had to work twice as long or more to reach the same level of contribution, and the same amount of pension, as if he or she worked full-time.
This difference in treatment also implied unequal treatment between men and women given that a good part of the part-time or part-time contracts fall to women (around 75% at the time of the ruling).
Unfair and discriminatory
In its 2019 ruling, the Constitutional Court took into account the pronouncements of European justice regarding the progressive application of the principle of equality between men and women. Thus, he considered that this different treatment between workers:
– It was improper from the point of view of equal treatment.
– It was discriminatory, violating article 14 of the Spanish Constitution, which prohibits any discrimination based on sex.
And, ultimately, it affected the determination of the amount of pensions, which were much lower in the case of part-time or part-time working women.
According to the High Court, it was not justified to establish a difference in treatment between full-time workers and part-time workers, in terms of reducing the regulatory base for part-time workers based on their lower contribution base.
This differentiation not only led to a detrimental result in the enjoyment of pensions for part-time workers; Furthermore, it predominantly affected working women, as the statistical data highlighted. And he concluded that this differentiation of treatment:
– Violated the right to equality between full-time workers and part-time or part-time workers.
– It caused indirect discrimination between men and women workers based on sex.
Indirect discrimination on the basis of sex occurs when an apparently neutral provision determines for people of a given sex a particular disadvantage compared to people of the other sex. This is so unless said provision can be objectively justified with a legitimate purpose, something that was not the case in the present case.
Half day as full day
After the modification – and for the purposes of accrediting the contribution periods necessary to give rise to the right to retirement pensions, temporary and permanent disability, death and survival, and birth and care of a minor –, from now on the different periods will be taken into account. during which the worker has remained registered with a contract, regardless of the length of the day worked in each of them.
The time quoted part-time or part-time will be fully computed. That is, half-time or part-time work will be counted as a full day for contribution purposes. It will no longer be necessary to contribute double or more days to achieve the same pension.
Consequently, not only is it possible to equalize the treatment between full-time workers and part-time or part-time workers, but it also, and explicitly, puts an end to the gender gap that was occurring between men and women at the time. to determine the amount of your pension in accordance with applicable legislation.
This article has been published in ‘The conversation‘.