Highest pay for night work based on age is discriminatory, Supreme Court says


The Administrative Dispute Division of the Supreme Court issued a judgment stating that, although the distribution of police tasks according to age is reasonable, higher pay for night work based on this criterion is discriminatory.

With this decision solves the Cassation appeals filed by the Basque government and two Ertzaintza unions against the judgment of the TSJ of the Basque Country which declared null and void certain aspects of the regulation of the working conditions of the staff of the Ertzaintza (ARCTE).

The contested judgment established the nullity by operation of law, in accordance with Article 47.1 a) of the Common Administrative Procedure Law (LPAC), of several articles of the Regulatory Agreement for the Working Conditions of Ertzaintza Staff (ARCTE ) for the years 2011, 2012 and 2013 and their bugfixes. I understood the sentence this precept violated the principle of equality provided for in article 14 of the Spanish Constitutionby discriminating against Ertzaintza officials belonging to the Citizen Protection and Investigation Units of the Guard, who perform their work on a shift schedule and fulfill the conditions for benefiting from the productivity supplement for absenteeism.

In the TSJ judgment, it is argued that “among civil servants who are in the same range of absenteeism, the only ones who do not receive the productivity supplement are those belonging to the protection of the citizen and the guard investigation, who work a staggered schedule. And that the others, such as the personnel belonging to the higher and executive levels and those who work on the schedule, standardized (administrative sections) in split day (Scientific Police), or flexible (investigation) or in rotation (Brigade Mobile), if they perceive it”.

The TSJ states that “all this must be assessed together with the absence of a cause justifying the difference between the civil servants of the Ertzaintza belonging to the Citizen Protection and Investigation Units, the conditions for receiving the productivity supplement for absenteeism. And it is that we are faced with an identical situation, but with a different treatment without any objective justification.

Supreme Court. (Photo: Cadena Ser)

This leads the TSJ to reject the legitimacy of the difference in treatmenttherefore, in this case, there is no objective and reasonable basis for the disparity and “the violation of the principle of equality must be assessed and the plaintiff’s request for nullity must be granted”.

casual question

The seductive question of the resources analyzed by the Supreme was essentially to know whether in the configuration of the additional remuneration, in particular in the productivity supplement, and in the determination of the other working conditions (hours, exemption from night work), provisions could be established that meet the presumption of the heavier burden in the provision of service suffered by members of the police force from a certain ageprecisely because of the specialties of the service they are called upon to render.

identify as legal rules which, in principle, must be subject to interpretation Articles 14 and 28 of the Constitution, in conjunction with Articles 2 and 6 of Directive 2000/78/ establishing a general framework for equal treatment in employment and occupation, and the Royal Legislative Decree 5/2015, of the basic law Statute of the public employee.

In his sentence, of which the magistrate Peak of Celsathe Supreme Litigation Chamber emphasizes that “the question of calling ageism o age discrimination usually affects older people or the youngest. It is generally understood to occur when the age is used to categorize and divide people who cause disadvantages, who may adopt multiple forms of discrimination, including retribution.

Taking this argument into account, he points out that “it is since the reasonableness and proportionality of the differential treatment constitutes the key to the feasibility or otherwise of a regulation in order to conclude whether or not there is discrimination based on age”. On this subject, he affirms that “a distribution of tasks or police organization that responds to physical circumstances derived from age, it is the administrative and other functions which are instituted as referred to in Article 74 of the disputed agreement.

Elderly Ertzaintza agents received a higher salary supplement than other agents when they worked at night. (Photo: RTVE)

Judgment of the CJEU

In its argument, the Supreme Court cites judgment of the Court of Justice of the European Union (CJEU) case 229/08 of 12 January 2010, which specifies that “the tasks of extinguishing fires and rescuing people, which fall to the average technical service of firefighters, can only be carried out by the youngest agents . Civil servants over 45 or 50 perform other duties. In order to ensure the efficient operation of the average technical fire service, it may be deemed necessary that the majority of the officers in the service be capable of performing the demanding duties of a physical sight and are therefore less than 45 or 50 years old. In addition, the assignment of civil servants over 45 or 50 to less demanding tasks from a physical point of view, this requires that they be replaced by young civil servants”.

However, the Supreme Court points out that in the case judged by the Bilbao Chamber no reasonable justification can be drawn taking into account the fact that, carrying out the same service at night, police officers over a certain age receive a higher salary, via additional remuneration, to those who have not reached it. “It has not been proven that the hardship of the Ertzaintza staff night shift was different in one or the other age group to fit into the so-called functional disability”, underline the magistrates.

Considering all of the arguments, the Supreme Court ruled that “although it is reasonable and provided for a division of labor or organization of the police which responds to the physical circumstances derived from age, the establishment of a higher remuneration for the provision of night services by older civil servants constitutes discrimination, for which reason the appeals are dismissed from the unions and the Basque executive.

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