Remuneration policies cannot disincentivize shared family responsibility

Shared family responsibility, understood as the balanced distribution of family responsibilities between men and women, is one of the goals of Act 3/2017 for Effective Equality of Men and Women. As such, business policies cannot establish rules that are a disincentive to fair participation, as concluded by the Central and Administrative Court in judgment 198/2018, of December 18.

In the case in question, the company’s remuneration policy compared paternity leave with temporary incapacity (“TI”) leave, and established a readjustment of sales targets for absences of more than 45 days. Therefore, as paternity leave can be taken for up to five weeks (four weeks when the events in question took place), a readjustment of the targets was not necessary, unless the employee also happened to take TI leave (i.e., paternity leave and TI leave concur). On the contrary, when maternity leave is taken, sales targets are readjusted for the accrual of bonuses, regardless of how long the leave is.

The Central and Administrative Court ruled that the difference in treatment between maternity and paternity leave breaches the equality principle. The judgment states that “the fight against gender discrimination does not stop at protecting maternity, but must also extend to the systems in place for shared responsibility and the sharing of family burdens, without which there cannot be equality between men and women.”

The judgment is aligned with Supreme Court judgment 10/2017 of January 10 (also covered in the blog), which included remarks from the judge on cases in which men—either because of adoption, fostering or transfer of maternity leave—suspend their employment relationship, stating that “to avoid all discrimination and guarantee equal opportunities between men and women, employees that have taken parental leave must not be at a disadvantage to employees that have not done so.”

The Central and Administrative Court repeated that finding, clarifying that it applies to both men and women for maternity and paternity leave, because if paternity leave is less protected (with a financial detriment such as that detected in the case at hand), the logical consequence is that paternity leave will not be taken, thus “perpetuating the mainstream assumption that women bear the family burden.”

That does not mean that differing durations of leave are discriminatory (as the court stresses), because there is a biological purpose to maternity leave: the mother’s recovery from birth.

However, the difference in the duration of the leave cannot equate to a difference in remuneration, which has no biological justification.

Therefore, company policies cannot offer different remuneration conditions for maternity and paternity leave.

Accordingly, review of corporate remuneration policy is vital to ensure there are no requirements that undermine gender equality. Otherwise, companies may face claims for those clauses to be quashed and for the differences in salary created, and even fines from the labor inspectorate.