Gender gap supplement: how does the Supreme Court’s new doctrine affect your business?

Why this change?

The decision follows case law from the Court of Justice of the European Union (CJEU), which considered it discriminatory to impose additional requirements on men (such as career interruption or specific contribution base differences after childbirth) in order to access the supplement.

Now, following a ruling from the High Court of Justice of the Basque Country, upheld by the Supreme Court, different treatment based on sex is no longer allowed. Article 60 must be interpreted equally.

What should companies and freelancers consider?

This change particularly affects companies with employees nearing retirement and self-employed workers applying for contributory pensions. Key considerations:

• Review of pension claims for workers with children.

• Up-to-date guidance for employees.

• Coordination with external advisors and payroll providers.

• Prevention of future claims based on indirect discrimination.

A decision that strengthens legal certainty

Royal Decree-Law 3/2021 had reformed the supplement with good intentions, but unintentionally created new inequalities by limiting men’s access. The Supreme Court now provides a clear criterion that eliminates legal uncertainty.

It also sends a message: equality policies must be inclusive and avoid creating new forms of discrimination.

What economic impact could it have?

• For male workers who were previously denied the supplement, this ruling opens the door to retroactive claims, provided they meet the general requirements.

For businesses, especially those offering internal support with retirement planning, this change must be taken into account

At Valero Tax Legal, we help companies, SMEs and the self-employed understand and apply Social Security regulations, and prevent risks arising from legislative or case law changes.