Supreme Court protects benefits for self-employed mothers on leave of absence
In its judgment of February 10, 2015, the Supreme Court upheld a worker’s right to maternity benefit for a child born while she was on leave to care for a previous child, despite the fact that she was registered, for social security purposes, under the Special Regime for Self-Employed Workers (RETA).
In the case heard by the court, the worker was on a leave of absence from her job in order to care for a child, and had registered under the RETA regime in order to do work whose characteristics, location, timetable, etc. would fulfill the fundamental purpose of balancing her employment with the care of her child. She then applied for maternity benefit on the birth of her next child.
The National Social Security Institute refused the request for maternity benefit under the General Regime on the grounds that she “was not registered or in an equivalent situation under the General Regime,” such as on leave of absence to care for a child, since the Institute considered that she had forfeited her leave of absence because she had taken on a new job.
However, the Supreme Court recognized the worker’s right to the maternity benefit, arguing that “since the new job is compatible with the care of the minor, the working mother’s legitimate aspiration to obtain income—which she has ceased to obtain precisely due to the leave of absence to care for children—should not be linked to such negative consequences as those set out above”, such as denial of benefits, non-recognition of the three-year period as a contribution period and, accordingly, loss of recognition of her situation as equivalent to that of a worker registered under the general regime, or the loss of the right to have her job held for her, which would be reduced to a mere preferential right to return to the company if there are any vacancies.
The court thus concluded that the only valid criteria for maintenance of the right to maternity benefit in such cases will be the “compatibility of the work performed with the adequate care of the minor”, which circumstance must be duly evidenced before the labor courts.
Garrigues Labor & Employment Department