A ruling issued by the Social Court number 10 of Bilbao has ruled that the current system for calculating the disability pension in part-time work is discriminatory on the basis of gender. According to the ruling, the calculation of the disability pension of a part-time worker “supposes an indirect discrimination to the plaintiff”, for which it is considered that the regulatory base should be calculated in a different way from how the Security has done Social.
In this case, the plaintiff, a nursing assistant with partial contracts, in October 2019, was recognized as incapacitated and was granted the right to a pension of 75% (55% plus 20%) of a regulatory base of 1,236.20 euros. For the calculation of the regulatory base, the bias coefficient equivalent to 88.92% was taken into account.
In the same way as the Constitutional Court ruled in July 2019 that the way the pension is calculated for people who work part-time was discriminatory on the basis of sex, since the calculation was different from those who worked full-time – and most part-time workers are women- the judge considers that in this case the calculation of disability within part-time jobs discriminates against people who work part-time versus those who work full-time, and women versus men, since the majority of workers part-time they are women.
According to the data provided by the plaintiff, of the total part-time workers in the third quarter of 2017, 75% were women. In 2018, the percentage of men with part-time jobs was from 23.50% to 24% compared to 76.49 and 75.59% of women and in 2019 it was approximately the same, the total percentage being with respect to 7.0% of full-time contracts for men and 23.8% for women with respect to total employment.
“The disputed issue raised by the plaintiff is to understand that indirect discrimination is being carried out since the partiality coefficient violates art. 4 of the European Directive 79/7 – EEC of 12/19/1978, as well as the constitutional doctrine, STC 91/2019 of July 3, and therefore the coefficient of partiality must be eliminated “, says the sentence.
This directive refers to the principle of equal treatment, which supposes “the absence of any discrimination on grounds of sex, either directly or indirectly”. Article 20 and Article 21 of the Charter of Fundamental Rights of the European Union are also violated, which provide that all people are equal before the law and prohibit all discrimination, in particular that exercised on grounds of sex, respectively. For these reasons, the court concludes that the calculation that should be made is as follows: “Well, we must go to the specific rules for calculating the regulatory base for permanent disability and ignore the percentage of partiality (art. 195 LGSS ), this is to add all the contribution bases and divide them by 112, this in this case gives us a sum of 1,413.44 euros, which is the one that the plaintiff starts, but forgets that we must apply the percentage provided for in art . 210 (art. 197. 1.b LGSS), and this does not give the figure that the contested resolution indicates (87.46%), therefore it is necessary to resort to another more balanced formula, which is only to compute the days listed, not affected by partiality, 11,188.00 and we would apply the indicated percentages (first 15 years 50%, 187 additional months 34.23%, and the rest of the months 24, 4.56%, total that is a percentage on the indicated base of 88.79%), which represents a regulatory base of 1,255.00 euros, and applied the 75 % results in a pension of 927.15 euros, to which is added the maternity supplement of 46.36 euros. ”
Thus, the ruling declares that the regulatory base of the total recognized permanent disability pension (75%) of the worker amounts to 1,255.00 euros, without prejudice to the revaluations and maternity supplement that may be appropriate, with which it is condemned to the National Institute of Social Security and the General Treasury of Social Security to pay the benefit with effect from 10/17/2019. Against this judgment, there is an appeal to the Social Chamber of the Superior Court of Justice of the Basque Country, since, although the annual amount is less than 3,000.00 euros, the violation of the fundamental right to equality is alleged. This newspaper has contacted the General Treasury of Social Security, who have indicated that for now they can only say that their “legal services are studying it.”