A new ruling of Superior Court of Madrid (hereinafter, “TSJ”) on a job position change inside the same company due to risks during pregnancy, analyzed whether the remuneration of the employee should be kept fully or may be reduced according to the new job position.
We have to take into account that such job position change is due to the pregnancy, that is, the employee’s job is dangerous for the baby (for whatever reasons) because of the special conditions of such position, the company has the obligation to relocate the employee into another position according to the pregnancy situation. That is, offer to the employee a new position in which there are no risks.
Once it is clear, the question is: If the remuneration of the new job position is lower than the previous one, has the employee the right to keep his fully salary?
In this particular case, in the previous job position the employee received a base salary plus those supplements linked to her professional status such as seniority, professional qualifications, professional category, and on the other hand, she received other supplements linked to some specifications or particularities of the job position such as nocturnality, pay for working on days off, etc.
Thus, what the TSJ resolved is whether should be maintained the full salary received.
According to the ruling, both European regulations and case-law set that a pregnant employee that is moved to another job position due to the pregnancy has the right to keep her base salary and those supplements linked to her professional status such as seniority, professional qualifications and professional category. However, supplements linked to some specifications or particularities of the job position such as nocturnality, pay for working on days off, etc. do not have to be maintained if the new job position does not have these particular conditions.