The Social Chamber of the Supreme Court (TS) recognized the right of a father, who was denied the maternity supplement to the pension implemented between January 2016 and February 2021, to receive that supplement and, in addition, to collect compensation for the damages caused by 1,800 euros. With this decision, the high court combined the doctrine and not only endorsed this type of compensation but also set it in general at the aforementioned amount.
This supplement was first declared discriminatory by the Court of Justice of the European Union (CJEU) on December 12, 2019 for all types of Social Security pension contributions, but it was not corrected by the current government officials until February 2021. On the previous date, when the Ministry of Inclusion changed the rule and renamed it the gender gap reduction supplement, it was intended for fathers and mothers from the first child upwards. However, after the CJEU said that the design of the first supplement made in 2016 was discriminatory, hundreds of parents across Spain, who were denied this supplement to their pensions, turned to the courts to claim it.
Then, with many claims for this supplement in the courts, on September 14, 2023, the CJEU issued a new judgment in which it declared that the first supplement subjected parents to double discrimination because, without giving it, even though there are children, and because, in this situation, only they and not the mothers should claim this additional money in court (because the administration systematically rejected it when they requested it).
The decision of the Supreme Court, announced this Friday, refers to the case of a person from León who was denied that supplement by the National Social Security Institute (INSS). The affected person appealed the case until the courts not only recognized this supplement to his retirement pension but also awarded him compensation of 600 euros for refusing to include it. However, Social Security appealed, instead, to the Supreme Court, saying that the decision issued by the Castilian-Leonese courts contradicted another from the Superior Court of Justice of Valencia in 2022, where the right to compensation is denied. Recently, on October 30, the Superior Court of Justice of Galicia issued another decision that recognized this additional payment to another father in the same case, setting a payment of 1,500 euros.
In this scenario, the Plenary Session of the Social Chamber of the Supreme Court today recognizes the right of a person to obtain compensation from the INSS “derived from the violation of the fundamental right to be impartial, as a consequence of the fact that he is deprived of supplement following the decision of the CJEU on December 12, 2019, which considered the regulation of the General Social Security Law discrimination based on sex,” the General Council of the Judiciary said.
In addition, the Supreme Court specified that “it is obligatory to establish compensation to compensate the damages actually suffered by the applicant who saw his request denied.” Therefore, carrying out its unifying work and considering that the damages caused in the different cases of the parents claiming this supplement in the courts “are the same and from the same decision of the INSS”, it sets the payment amount, which is 1,800 euros.
“This amount,” the decision concluded, “includes comprehensive reparation for the damage suffered if necessary for the person prejudiced by an INSS resolution following the decision of the CJEU on December 19, 2019 that should go in the social jurisdiction to get the compensation.” In this way, the Supreme Court also established the same amount of compensation for all parents who had to claim the supplement that was declared discriminatory by the courts, “without providing comparative grievances derived from potentially disparate solutions that create inequality that is difficult to justify,” shows judgment.