Kinesiotherapists in social assistance stay paid less than those in healthcare units, and the Constitutional Court has upheld the difference

The same diploma, the same trade, two different salaries, depending on what is written on the door of the institution that employs you. The Constitutional Court has confirmed that the law may draw that difference, and rejected the plea raised by a kinesiotherapist at the Satu Mare General Directorate for Social Assistance and Child Protection. It is the second time this year that the constitutional court has refused to read the principle of equal pay for equal work the way employees understand it: in February 2026 it had already shown that bonuses do not fall under the guarantee of equal pay for equal work, and now it says that not even the basic salary has to be identical for the same post, if the employing institutions are organised differently.

The text from which everything starts is Article 38(4⁴) of Framework Law no. 153/2017, inserted by Article I point 1 of Law no. 64/2020, published in Official Gazette of Romania, Part I, no. 428 of 21 May 2020. It provides, by way of exception to paragraph (4), that staff in the healthcare system holding the posts of physiokinesiotherapist, kinesiotherapist and CFM teacher receive, from 1 July 2020, the basic salaries laid down by law for 2022. Paragraph (4), from which it derogates, provided for the period 2019-2022 annual increases equal to a quarter of the difference between the salary laid down for 2022 and the one in December 2018. In short, those in the healthcare system jumped straight to the end, and the others climbed step by step.

The author of the plea holds the post of kinesiotherapist at the social assistance directorate in Satu Mare and is paid under the same Annex no. II to Framework Law no. 153/2017, the annex of the „Health and social assistance” occupational family. The difference comes from the heading: her pay sits at point 3, the one for social assistance institutions and units with or without accommodation, not at point 2, the one for healthcare units. The 2020 increase reached only point 2, and point 3 was left unchanged.

There were three criticisms. The first, that the text is equivocal and lacks clarity, and is therefore contrary to Article 1(5) of the Constitution. The next, that it breaches equality of rights and equal pay for equal work, enshrined in Article 16(1) and in Article 41(2) and (4) of the Constitution, in Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and in Article 23 of the Universal Declaration of Human Rights. Finally, implicit in the first two, that equal work calls for equal pay within the same professional category. The Satu Mare County Court, First Civil Division, took the view itself that paying the same posts differently, without a reasonable and objective justification, breaches the final sentence of Article 16(1) of the Constitution. The presidents of the two Chambers of Parliament, the Government and the Ombudsman sent no points of view.

On clarity, the answer was short. The phrase „personalul din sistemul sanitar”, staff in the healthcare system, is found in Law no. 95/2006 on the reform of the health sector and differs from „sistemul de asistență socială”, the social assistance system, which appears in Social Assistance Law no. 292/2011, and Law no. 64/2020 raised salaries only for healthcare units and for medical and social care units. The decision further observes that the meaning of the text is clear even to the author of the plea, who is seeking a broad reading of it, not its removal.

On equality, the decision goes down into the work of Parliament. It appears from the explanatory memorandum to the law that the initiator wanted increases for all physiokinesiotherapists, kinesiotherapists and CFM teachers employed in the public system, in order to encourage the practice of those professions. After the amendments proposed by the Committee on Labour and Social Protection, the increases were no longer granted to those in social assistance, on the ground, quoted by the Court, that „majorarea coeficienților pentru funcțiile de execuție din instituțiile și unitățile de asistență socială/servicii sociale nu poate fi susținută, cu atât mai mult cu cât aceste majorări salariale ar duce la depășirea nivelului salarial stabilit pentru funcțiile de conducere ale acestor instituții”, the raising of the coefficients for the non-management posts in social assistance institutions and units cannot be sustained, all the more so since those salary increases would take pay above the salary level set for the management posts of those institutions.

Starting from there, the Court held that the solution had regard to the financial resources available and to the need to maintain the institutional hierarchy in matters of pay, which means that persons holding the same post but placed in different structures are in objectively different situations. It added that inside the healthcare system too the law pays kinesiotherapists differently, according to the structure in which they work, and it relied on Decision no. 85 of 2 March 2023, under which differences in income between employees with the same activity and the same seniority, but at different public institutions, do not offend equality of rights.

What it changes in practice

The first effect is borne by the author of the plea. Her salary entitlements case before the Satu Mare County Court, First Civil Division, case no. 1.285/83/2020, goes on with the text left untouched, and the constitutional basis she was counting on has gone. The decision is generally binding from 25 September 2026, the date of publication, under Article 147(4) of the Constitution.

The second effect reaches a whole category of employees. Kinesiotherapists, CFM teachers, but also speech therapists, psychopedagogues, occupational therapists and sign language interpreters in social assistance institutions and services stay on the grid at point 3 subpoint 3.2 of Chapter I of Annex no. II. Any case brought on the same argument now has against it a decision given on the merits.

The third effect is the one that cannot be seen and that counts most for the future. The decision validates a criterion for differentiating pay that has nothing to do with the work, but with the way the employer is organised and with the institution’s internal hierarchy. Put that way, it can be invoked anywhere in the public sector: if an increase for non-management posts would go above the salary of the management, the increase can be refused.

The fourth effect concerns what is practically at stake, which is smaller than it looks. The advantage given by paragraph (4⁴) consisted in reaching earlier the salary level laid down for 2022, and the staged mechanism from which it derogates concerned, under the same article, the period 2019-2022. By the date of publication of the decision, that window had been closed for years, so the discussion is about differences not received in the past, not about tomorrow’s salary.

The fifth effect is a pointer for anyone who wants a change. The Court said that laying down the actual conditions for granting salary entitlements falls within the exclusive powers of the legislature, not that the difference has to be kept. Aligning the grid at point 3 with the one at point 2 can be done at any time by amending Annex no. II, with no litigation at all.

What has changed compared with the previous situation

Before Law no. 64/2020, the two categories were treated alike. The Court writes plainly, in paragraph 14, that the law had initially laid down identical legal treatment for kinesiotherapists in non-clinical healthcare units and for those in social assistance institutions. The 2020 amendment broke that identity, and the present decision confirms the break.

The second change has to do with the number of grids for the same post. Putting paragraphs 14 and 16 together, one sees that a kinesiotherapist may today be paid under four sets of values: that of clinical units, at subpoint b.1, that of ambulance services, of emergency reception departments and of intensive care wards, at subpoint b.3, that of the other healthcare units and of medical and social care units, at subpoint b.4, and that of social assistance institutions, at subpoint 3.2. The 2020 jump reached only the first three.

The third change is one of case law, but one of continuity, not of turning point. The decision falls into line with Decision no. 85 of 2 March 2023, published in Official Gazette of Romania, Part I, no. 710 of 2 August 2023, which had already said that duties, powers and responsibilities may differ even for identical posts, if the employers are different public institutions. What is new is that here the two institutions apply the same annex of the same law.

The fourth change concerns the argument on which a refusal to raise pay can from now on rest. Until this decision, the justifications accepted in constitutional case law had to do with the particular nature of the activity and with the degree of demand. Now the preservation of the internal salary hierarchy joins them, that is, the concern that non-management staff should not rise above the management, an argument that says nothing about the work performed.

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