He Court of Justice of the European Union (CJEU) will decide this month of December if the Spanish regulations on the calculation of the pension for permanent disability resulting from a work accident violates the principle of equality by indirectly discriminating against women who opt for the reduction of working hours for family conciliation. Although the sentence was scheduled for December 12, it has not yet been published.
All this occurs because, until now, the General Law of Social Security (article 198 of Royal Legislative Decree 8/2015) establishes that, in the event of a work accident, the calculation of the pension for total permanent disability depends on the salary received in the time of the accident. Thus, if a worker has a reduction in working hours due to conciliation, during the first two years his pension is calculated based on 100% of the salary (that is, as if he were receiving the full salary). But, From the third year onwards, the basis for calculating the pension becomes the reduced salarywhich can translate into a lowest pension.
Regulations that harm women in a situation of permanent disability
This situation has arisen as a result of the Social Court number 3 of Barcelona raising a preliminary ruling question to the CJEU on September 21. In his consultation, he questioned whether this regulation could infringe European law, considering that it could generate indirect discrimination based on sex. The reason for this approach is that statistics show that they are mostly the women who request reductions in working hours to care for minor childrenwhich puts them at a disadvantage compared to men in cases of work accidents and which later lead to permanent disability in any degree.
The main argument for this discrimination is that the reduction in working hours to care for a minor child affects women more than men. According to the data, the women represent a much higher percentage high of those who exercise the right to reduced working hours for the care of children under 12 years of age. Therefore, in the event of suffering a work accident, after more than two years of reduction in working hours, when calculating the pension, the amount would be lower than before the reduction.
For this reason, the court raises this query, since the ruling of the CJEU will determine whether the current calculation method is compatible with the principle of equal treatment and non-discrimination included in Community law. If the existence of indirect discrimination is confirmed, Spain could be forced to modify Social Security regulations to guarantee greater equity in pensions for permanent disability derived from work accidents.