Nullity of the calculation of retirement pension for part-time workers
The TC has declared void the precept that regulates the amount of retirement pensions from part-time work because it is considered discriminatory by violating the right to equality with respect to those who have a full-time contract. In addition, this form of calculation also constitutes indirect discrimination on the grounds of sex since statistically the majority of part-time workers are women.
The question is whether the application of the partiality coefficient violates the application of the partiality coefficient in order to calculate the contribution period used to set the percentage applicable to the regulatory basis of the workers’ retirement pension part time.
The examination of the precept leads the TC to declare it unconstitutional for violating the right to equality before the law between full-time and part-time workers.
The amount of the retirement pension is determined based on two factors: the regulatory base and the contribution period, which in turn serves to set a percentage on the regulatory base. The regulatory base safeguards the principle of proportionality among full-time and part-time workers, because in accordance with the time actually worked, an appropriate remuneration is obtained. However, in setting the contribution period different rules are taken for full-time and part-time workers. In full-time workers, time is computed by years and months of contributions.
On the other hand, for part-time workers, a partiality coefficient is applied to the quoted years and months, and the resulting value is increased with a coefficient of 1.5. With this method of calculation, the contribution period for a part-time worker does not correspond to the one that naturally derives from the months and years quoted, unlike what happens with full-time workers. There is, therefore, a difference in treatment in setting the contribution period for some naturally, based on real time, and for others artificially from a reducing value, which is not objectively and reasonably justified.
The TC also considers, in line with the Judgment of the CJEU 8-5-19, C-161/18, that the precept analyzed causes indirect discrimination based on sex because the part-time contract is an institution that predominantly affects to working women.
Therefore, it is declared unconstitutional and void the subsection “of retirement and” contained in the provision add.7.7 third rule c) LGSS 1994 (incorporated in identical terms in art. 248.3 LGSS 2015), so that in the Determination of the amount of the retirement pension does not apply the partiality coefficient and, consequently, once the minimum contribution period required is accredited, the corresponding general scale is applied, without reducing the period of discharge with part-time contract by the bias coefficient.