- “A salary supplement that ceases to be paid if the justified absences exceed 30 calendar days implies that all maternity leave leads to the loss of this supplement.
In this regard, it should be noted that maternity leave cannot be equated to any other leave, such as temporary disability leave, since the former is exclusive to women. Therefore, the company’s rule based on absences is not neutral, since it only affects women, and therefore discrimination occurs when maternity leave is not excepted”.
This is how categorical is the sentence that we comment today in our blog, issued by the Social Court No. 26 of Barcelona.
In it 25,000 euros in favor of the plaintiff employee and the company is obliged to pay the bonus that she did not receive (identical to the last one received) and to apply a salary increase equivalent to the one she obtained the previous year. The ruling makes it clear that it is discriminatory to deny the annual bonus to a female employee if her absence is due to maternity, and fixed this indemnity considering that “the conflict has necessarily generated some expenses for the plaintiff, and a worry, having to litigate judicially against the one who is still her employer, and on whom her livelihood depends, compromising her professional future”.
The Court, therefore, upheld the claim filed by the worker, and declared the violation of the fundamental right not to suffer discrimination on the basis of sex.
The specific case: discrimination for not raising salary and not paying the annual bonus
In this case, the employee – who had been working for the defendant company for more than 12 years as an associate director – did not receive, during the year in which she became a mother, the corresponding productivity bonus, nor did she benefit from a salary increase.
This bonus amounted, on average, to some 7,400 euros per year, and her last annual salary increase amounted to 1.01%.
In total, the employee was out of the office for 7 months, combining a medical leave for common illness – due to poor growth of the fetus -, her maternity leave, the compacted enjoyment of breastfeeding leave, and her vacation. Once she returned to the office, the plaintiff opted for a 25% reduction in her working day to care for her daughter. Under these circumstances, the company argued that this absence prevented it from evaluating the employee’s performance. The judgment considers it proven that the company has an incentive system consisting of a variable remuneration or bonus that is not regulated in any legal instrument (neither in terms of its amount, nor in terms of the criteria for its recognition or denial).
This bonus depends solely on the evaluation of the work of each professional, carried out by his or her superior. In this sense, the ruling states that “it is evident that it is a system that can be clearly improved, that lacks any objectivity, that suffers from obscurity, and that it is a fertile ground for arbitrariness”.
It goes on to comment on the following:
“The company maintains, and in this we must agree with it, that in cases of very long absences, for more than 6 months in a single fiscal year, it is very difficult or impossible to value the work of the professional.
And, consequently, it has the internal criterion of not valuing the employee and not paying him the bonus.
This criterion is applied regardless of the sex of the employee and the reason for his or her absence.
Analyzed in isolation the business criterion may seem aseptic, absolutely neutral.
But its practical application determines a greater affectation for women, due to a circumstance inherent to their sex, the biological fact of maternity. To such an extent that any worker with a full-term pregnancy will suffer the application of the aforementioned company criterion, since simply with maternity leave, breastfeeding and vacation time, her absence will be considered prolonged. We are, therefore, faced with anevident discrimination that, although in principle it could be considered indirect, receives the legal treatment of direct, as will be indicated below, due to its link to pregnancy”.
Equality plan: the importance of making it truly useful
On the other hand, the judgment recalls that “it is of no use to have an Equality Plan if discriminatory criteria continue to be applied”, and insists that “it is surprising that the company has not detected the discrimination”. in this system:
“The wage gap between women and men is a statistically verifiable reality, which still persists even though the need for its elimination is being hammered on from all sides.
And within this gap, the maternity gap is the most evident and deep-rooted, as it is inherent to the biological circumstances of women”.
Thus, the business criterion of not valuing the professional for his or her long absence is justified in cases in which the absence is voluntary on the part of the worker, such as leaves of absence, or suspensions of the work contract, even disciplinary. But “not in absences related to maternity, a biological fact inherent to women”. According to the data provided, that same year there were as many as twelve workers who did not receive productivity bonuses, nine of them women, five of whom were mothers. Regarding the alternatives for valuing the work of these employees, the ruling proposes two ways: on the one hand, to apply a qualitative criterion, or, on the other hand, to apply the same increase as the one established last year. The second criterion is the one taken as a reference in this judgment, which obliges the company to pay a bonus of 7,980 euros gross and a wage increase of 1.01%. Contact our lawyers in Barcelona if you need to defend your labor interests related to your maternity or paternity.
