FUNDANEED.es
It is disputed whether the provision on fictitious contributions due to childbirth contained in art. 235 of the LGSS/2015, in relation to the repealed Additional Provision (DA) 44th of the LGSS/1994, is applicable to unemployment benefit for the over 52s.
The plaintiff paid contributions to schemes that protect the unemployment contingency for a total of 1861 days, being the mother of three children born in 1980 and 1981. Her application for unemployment benefit (January 2019) for the over-55s was rejected because she had not contributed for at least six years to a scheme protecting the contingency of unemployment. Her prior claim was rejected by the spanish State Public Employment Service (SEPE) on the grounds that the contribution periods assimilated to childbirth are only computed for the purposes of contributory retirement and permanent disability pensions. The Social Court No. 4 of Jaén upheld the worker’s claim and declared her entitlement to receive the over-55 benefit from the date of application (judgment of 2 March 2020, No. 7/2020); however, the judgment of the High Court of Justice of Andalusia (Granada) No. 2802/2020 of 15 December 2020 upheld the SEPE’s appeal and overturned the court’s judgment.
The interpretation of regulations with a gender perspective, in relation to the judgement of the plenary session of the Social Chamber of the Supreme Court, no. 576/2022.
In 2007, Organic Law 3/2007, of 22 March, for the effective equality of women and men, hereinafter LOI, was published. Articles 3 and 4 of this law enshrine the principle of equal treatment between women and men and the consideration of this as a guiding principle of the legal system.
The conclusion of the Plenary is that: For the purposes of unemployment benefit for the over 55s, the periods of assimilated contribution for childbirth (art. 235 LGSS) have to be taken into account to check whether the requirements for the retirement pension (fifteen years in total: art. 205.1.b LGSS) and for the benefit itself (six years for unemployment: art. 274.4 LGSS) are met. We reach this conclusion on the basis of a teleological, systematic, constitutional and gender-sensitive interpretation.
Source: BAR ASSOCIATION OF MADRID. LEGAL TECHNICAL UNIT. LIBRARY. LABOUR PROCEDURAL AREA
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