The two leaders who watch over justice in Spain, the Supreme Court and the Constitutional Court, have ruled at the same time in favor of maternity leave. They have done so in separate judgments advocating against discrimination against women on the grounds of maternity leave.
In this way, they protect the principle of equality and non-discrimination on grounds of sex, as enshrined in article 14 of the Constitution. Thus, they put an end to the exclusion of women on the grounds of maternity leave.
On the other hand, according to constitutional doctrine, pregnancy is a “differential factor” that falls exclusively on the woman. For this reason, the protection of this biological reality must be compatible with the preservation of their labor rights.
The Constitutional protects a pregnant woman
The Constitutional Court protected a woman who was on leave due to pregnancy. This did not improve their working conditions, even though the company had opened up the opportunity.
According to the ruling of the court of guarantees, the company had to notify the woman of the possibility of changing positions. By failing to carry it out, he aggravated his right to equality. Specifically, not to be excluded on the basis of sex.
The Supreme Court rules in favor of a group of workers
For its part, the Supreme Court contemplates in its resolution that maternity leave
should not be counted as absence. At the same time, discharge for risky pregnancy should not be classified as such either.
This fact has effects when computing the productive days to benefit from the right to the benefits of the various incentives.
Specifically, the highest representative of justice in Spain considers the lawsuit filed by CC.OO. of Andalusia against the company CATSA. In this case, the employees on pregnancy and maternity leave did not take any benefits during the first month of returning to work.
They only received the incentives to which they are entitled once they have re-entered. And they did so a month after the date of their reinstatement. Moreover, they received it based on the labor services provided after their return to work.
For the Supreme Court, this is direct discrimination. This is emerging as opposed to the right to maintain and preserve the working conditions of women workers.
With these two sentences, the highest representatives of justice in Spain promote equal opportunities and non-discrimination of women on maternity leave.
In this context, it is necessary to specify the characteristics of maternity leave in the Social Security,how to proceed in case of being autonomous and the date on which maternity leave is collected.
Maternity leave from Social Security
Social Security protects women through a subsidy. It is open to mothers in the process of maternity, adoption, foster care and guardianship.
In this context, it is necessary to specify the duration of maternity leave. This extends to 16 uninterrupted weeks. Two more weeks can be extended for each son or daughter from the second, in the case of multiple births.
What day is the maternity leave charged?
The period in which the benefit begins is on the day of delivery or from the beginning of the rest. In the case of being prior, in the cases of guardianship and adoption, from the judicial resolution.
If it is a foster care based on the administrative or judicial decision.
Maternity leave for unemployment
Once a woman who is unemployed becomes pregnant, she begins to collect maternity benefit. It does so through social security (INSS) and not INEM.
Who pays for maternity leave in the self-employed?
The Social Security is the one that takes charge of the benefit of maternity leave to self-employed.
The main requirement to enjoy the subsidy is to be up to date with the payment of the fees. If not, there is an extraordinary period of 30 days to correct the situation.
In this way, self-employed women have the same rights as employed women. They have the right to maternity leave, adoption, foster care or guardianship of a family member.
A 16-week benefit
The aforementioned benefit entitles the self-employed worker to a subsidy of 16 uninterrupted weeks. These are counted from the day the rest period begins. It can be on the date of delivery – with 15 days to notify it.
On the other hand, there is a possibility that it will be at an earlier date if you choose to start the rest before delivery.
Therefore, thanks to the judgments of the Constitutional Court and the Supreme Court, mothers are protected from justice. As for those who are unemployed or are self-employed, the Social Security welcomes them under its umbrella.