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Thursday, 23 March 2017 12:13

Europe requires the inclusion of days not worked in the calculation of the contribution

Advocate General Eleanor Sharpston emphasizes that European legislation prevents states from excluding days not worked from the calculation of days quoted, thereby reducing the period of unemployment benefit when most "vertical" part-time workers are Women who are disadvantaged by such national measures. In its conclusions presented today, it proposes to the Court that in its future judgment it should be replied to the Social Court no. 33 in Barcelona that the European Directive on the progressive implementation of the principle of equal treatment for men and women in matters of social security Is opposed to this. In more than 90 per cent of cases, the final decision of the Court follows the line of the Advocate General.

The magistrate clarifies that Directive 97/81 / EC does not apply to a contributory unemployment benefit financed exclusively by the contributions of the worker and the employer. In that regard, it points out that European legislation prohibits discrimination on grounds of sex, particularly as regards the conditions which determine the duration and maintenance of entitlement to benefits.

The matter starts from the challenge of a cleaning worker for the duration of her unemployment benefit. The defendant considered that the exclusion of days not worked, for the calculation of the period of benefit, established a difference in treatment between "vertical" part-time workers and "horizontal" part-time workers. In this way, he argued that all days quoted and not only those worked should be computed in order to establish the period of the benefit. Failure to do so would entail, in addition to a double penalty "illogical and contrary to the principle of proportionality", direct or indirect discrimination on the basis of sex. Employment recognized the benefit taking into account the number of days actually worked and not the number of days quoted.

"In this case, the Spanish legislation is not directly discriminatory, since it applies without distinction to both workers and workers," explains the Attorney General. "However, there is indirect discrimination because the application of the rule, although formulated in a neutral way, actually affects a much larger number of women than men," he acknowledges.

The statistics that the Barcelona court sent to the European Court show that between 70% and 80% of the workers whose work is structured vertically are women. The same ratio between men and women is valid among horizontal part-time workers. "From this information can validly be concluded that the national legislation harms women in a greater proportion than men," says the judge.

The Attorney General considers that the Spanish system treats two groups of workers differently. In this way, a vertical part-time worker will receive a benefit of a shorter duration than a full-time worker, although he will quote for each day of all the months of the year. "In the case of vertical part-time workers, more emphasis is given to days actually worked than to the period of time the worker employs to do his work during the course of a workweek, placing part-time workers on a vertical In a situation of disadvantage, "he concludes.

Digital Newspaper El Economista