The Constitution considers that the current regulation of part-time pensions violates the right to equality and the principle of non-discrimination against women.
The Plenary of the Constitutional Court unanimously considered an internal question of unconstitutionality raised by the Second Chamber of the Court itself, declaring the unconstitutionality and nullity of the provision regulating the amount of the retirement pension for part-time workers on the grounds that it violates the right to equality and the principle of non-discrimination against women.
Specifically, it has declared null and void the paragraph “of retirement and” of the first paragraph of letter c) of the third rule of the seventh additional provision, paragraph 1, of the rewritten text of the General Law on Social Security approved by Royal Legislative Decree 1/1994, of 20 June, in the wording given to the precept by article 5.2 of Royal Decree Law 11/2013, of 2 August, for the protection of part-time workers and other urgent measures in the economic and social order.
The ruling considers that this subparagraph infringes the right to equality between full-time and part-time workers in the calculation of the amount of the pension because of the way in which the contribution period is calculated. Furthermore, it constitutes indirect discrimination on the basis of sex, since it is statistically evident that the majority of part-time workers are women, which has an adverse impact on workers of one sex.
The decision considers that the contested provision produces unequal treatment because the requirements of “objective and reasonable justification” for the differences it establishes are lacking. Furthermore, “it also breaks with proportionality since, in addition to a reasonable reduction in the regulatory base for part-time workers in accordance with their lower contribution base, it also adds a reduction in the contribution period for setting the amount of the benefit (percentage of the base), which is not done for full-time workers”. “…what is not justified is that a difference in treatment is established between full-time and part-time workers, no longer in terms of the reduction of the regulatory base for the part-time worker according to his lower contribution base, but in terms of the further reduction of the regulatory base by a percentage derived from a coefficient of partiality that reduces the effective number of days of contribution, a differentiation that not only leads to a detrimental result in the enjoyment of social security protection for part-time workers, but also predominantly affects working women, as the statistical data reveal”. This predominant effect on women workers is expressly considered in the ruling as indirect discrimination, in accordance with the definition contained in article 6.2 of Organic Law 3/2007, of 22 March, on effective equality between women and men.
With regard to the effects of the ruling, the Plenary, applying its doctrine, points out that not only must res judicata be preserved but, by virtue of the constitutional principle of legal certainty, the ruling shall not extend to final administrative situations either, so that situations that have already been consummated cannot be reviewed on the basis of that doctrine.