La transposición pendiente en el ordenamiento español de la Directiva 92/85 de protección de la maternidad (lo que significa prevenir)

Abstract

The article takes as its point of reference the recent rulings of the Court of Justice of the European Union in which, by ruling on preliminary rulings from Spanish courts, the European Court warns of important shortcomings of the Spanish legal system in the protection of maternity. In general, it was believed that the Spanish norm exceeded the minimums established by the European Union legislation on maternity because it established a maternity leave of longer duration than that established in Directive 92/85 during which women were insured their previous income and were protected from dismissal without cause through the institutution of the null and void dismissal. However, all this legislative framework that seemed adequate has been shown to be deficient because, according to the provisions of the Court of Justice of the European Union, Spanish legislation does not adequately protect mothers who are pregnant or who are breastfeeding. These judgments indicate that Spanish legislation only meets apparently the European Union regulations on maternity protection but has not been able to transfer the true meaning of occupational risk prevention to situations related to maternity. There are serious flaws, therefore, both in the understanding of the scope of preventive obligations related to motherhood and in the guarantees that all norms and institutions must respect referring the protection of fundamental rights. The article identifies what the purpose of preventive activity in terms of maternity should be according to Directive 92/85, based on the recent judgments of the Court of Justice of the European Union and tries to detect which are the defects of the Spanish legal system. From this analysis, lege ferenda proposals are made. The first section of the article analyzes the state of the matter and summarizes the meaning and scope of the most emblematic judgments of the Court of Justice of the European Union at the respect: Otero Ramos (STJUE of October 19, 2017, C-531/15), González Castro (STJUE of September 19, 2018, C-41/17), Porras Guisado (STJUE of February 22, 2018, C-103/16), Roca Álvarez (STJUE of September 30, 2010, C –104/09) Betriu Montull (STJUE of September 19, 2013, C-5/12), Griesmar (STJUE of November 29, 2001, C-366/99) and Leone (STJUE of July 17, 2014, C-173/13). From them the article states that there are two axes around which gravitate the defects of transposition of the Spanish legislation in the matter of pregnancy, maternity, recent birth and brestfeding: the first of them is related to the scope of the obligation to prevent; the second is related to the difference in the scope between the rights related to maternity and the rights related to the care of children and relatives. These are the two axes around which the work is developed. The second section of the article is called «The scope of the preventive obligation in maternity and breastfeeding: defects of the Spanish legal system and proposals based on the doctrine of the CJEU». Based on the judgments handed down by the Court of Justice of the European Union, the article states that prevention in Spain consists essentially of exemption from the obligation to work (suspension / risk-taking during pregnancy and breastfeeding), which is not It is the most appropriate solution because it causes temporary expulsion from work. The adaptation of the position in these cases is scarcely used, which shows the great difficulty that companies have to accommodate work to people not only in the case of maternity and breastfeeding, but also for the reconciliation of responsibilities or for the prevention of risks in case of particularly sensitive workers. Normative reforms are proposed to reinforce this obligation. In the case of pregnancy, adaptation is related to the physical changes linked to pregnancy, but in the case of breastfeeding adaptation has a larger dimension, because it aims to ensure that breastfeeding can be carried out directly or that, at least, there is sufficient time and minimum conditions for the extraction of milk, which requires a rethinking of flexibility for the benefit of the worker. The article also proposes the reform of art. 26 LPRL so that the evaluation of risks in maternity and breastfeeding is carried out properly, taking into account the specific characteristics of the person who occupies or may occupy the position. It also points out the need to configure adequate compensation and effective and dissuasive sanctions, as required by Directive 2006/54. An important part of the second section of the article is devoted to analyzing whether or not the Spanish legal system grants effective protection against the dismissal without cause of the pregnant worker. The sentence handed down in the Porras Guisado case indicates that the Spanish law fails to comply with Directive 92/85 because the protection against dismissal that it sets (and which is based on the declaration of nullity of dismissal without cause) is not of a preventive nature, as required by the Directive 92/85. The Court of Justice in the Porras Guisado judgment establishes that protection against dismissal of pregnant workers must be carried out on a preventive basis and that it is not enough to simply consider null and void the dismissal without cause. The work exposes several examples that show that in our country the consequence of nullity does not guarantee an effective protection in case of pregnancy. In fact, these examples show that the Spanish law does not offer effective protection against dismissals when there is a violation of fundamental rights. In relation to pregnant workers and other workers included in the application field of Directive 92/85, preventive protection against dismissal without cause requires the employer to do everything possible (and not only the business reasonably) to avoid dismissal. This would require that the system establish specific mechanisms that would specify this obligation to do everything possible (for example, by means of preferential obligations and relocation) and should also lead to the fact that the norm specifically configured it as a content of the preventive obligation, transferring to our legislation the one established in the Porras Guisado case. The third section of the article is entitled «The extent of protection: what is maternity protection and what is parental care». The question of the subjective scope of the protection provided in the case of maternity, on the one hand, and conciliation, on the other, is fundamental because only maternity admits differentiated treatment between men and women, which is why it is the fundamental issue for a correct transposition of the anti-discrimination and maternity regulations. There are two situations in our country that, at least theoretically or nominally, can present aspects of coincidence both with the issue of parental leave and with the protection of maternity. They are the socalled brestfeding permit (which, in reality, is parental leave) and the protection due in case of maternity. With regard to the so-called brestfeeding permit in the article, it is stated that the reform carried out in 2012 was limited to establishing the father’s right to this so-called brestfeding permit, but without establishing any type of mechanism that favored co-responsibility between women and men. The work proposes a fully individual and non-transferable permission. Regarding the protection of maternity, the work is based on the idea, reiterated by the Court of Justice of the European Union, that only maternity leave can be exclusively owned by women, so any permission or benefit whose nature is parental care must be configured with a completely indistinct character for men and women (Roca Alvarez, Griesmar, Leone). Therefore, Spanish supplement of maternity pensions must be questioned, since its justification is not maternity itself but family care.