Now, and based on this report, which, although it is not binding in most cases, is a reliable precursor, the magistrates will have to rule on whether Spanish legislation – specifically the General Law of Social Security (LGSS), in its article 251– It contravenes the Community principle of non-discrimination in matters of social security, assuming a “particular disadvantage” for all those household employees with respect to other sectors.
This ruling would generate a doctrine by which any court – from the highest to a First Instance court – would be subject to its interpretation, which would open the door for nearly half a million domestic employees to contribute unemployment benefits.
Under the legal representation of the lawyer Javier de Cominges, from the Vento Abogados law firm, the lawsuit comes from a domestic worker in Vigo who in 2019 asked Social Security to pay for unemployment for the future. It’s more, her own boss agreed to pay the requested contribution. However, the response of the INSS was blunt: the regulations prohibit it, she and the almost 400,000 women affiliated with the special regime for domestic workers in Spain.
For this reason, this Vigo woman appealed the decision before the Contentious-Administrative Court 2 of Vigo, which is headed by Judge Marcos Amboage, alleging that the national provision leaves the domestic workers in a situation of “social distress” when their employment relationship is terminated for reasons that are not attributable to them. This situation translates into the inability to access both unemployment benefit and any other social assistance that requires the exhaustion of the right to this benefit, as explained by the lawyer from Cominges.
In this context, the Vigo judge highlighted that it is a group made up almost exclusively of female persons, which is why he sent a query to the Court of Justice of the European Union (CJEU) to interpret whether this situation contravenes the Directive. 79/7 / EEC, on the principle of equality in matters of social security, which prohibits indirect discrimination on the grounds of sex.
Arguments of the parties
Last July the preliminary hearing took place in Brussels. The appellant from Vigo wielded, among others, the “precariousness” of the group, which translates into what, in the event of illness, if it is prolonged in time, it leads to the loss of their job without having a safeguard, such as unemployment, unlike of what happens in other jobs. Consequently, by not being able to access unemployment, they cannot enjoy other benefits that require this unemployment.
The CJEU ruling is expected in 2 months and would generate doctrine for other courts
As for the defense of the Treasury, it alleges that it is a group of employed workers, even a “minority”, insisting that the employer is not an employer, but “the head of the family at home.” Regarding possible discrimination, Social Security stands out from the national regulations, specifically from the aforementioned article 251 of the LGSS, which is “neutral” insofar as its wording provides for “homogeneous” recipients.
The EU Advocate General rejects this precept assuring that “in reality they are not”, since “the group of domestic employees is clearly female and, to a large extent, made up of foreign population. What i knowand it translates into discrimination based on sex, negative, to the detriment of the female ”.
For older people, it also rejects the allegation that a possible protection of domestic workers against unemployment could incite them to fraud. He points out that, if this were the case, the same would happen in the case of “All low-skilled labor market workers who receive the minimum wage in other sectors, who, consequently, should also be excluded from unemployment benefit”. The lawyer Javier de Cominges adds to this objectivity of the General Counsel by assuring that granting them the right to contribute due to unemployment “can generate a drop in irregular work, the workers will see that they have higher benefits, which will favor them discharge ”.
After reaching these conclusions, this European figure has paralyzed the procedure initiated in Vigo until the CJEU decides, within an estimated period of two months, on the legality of the state regulation. “This report gives an important boost to ensure that all workers have the right to this benefit. Until now, everyone has them except the domestic workers ”, highlights Javier de Cominges