The Social Chamber of the Supreme Court has issued a ruling in which it establishes that the dismissal of a pregnant domestic worker is null, even if the employer does not know your situation, understanding that in this case the objective protection of pregnancy, contained in article 55.5 b) of the Workers' Statute, must be applied.
The Chamber agrees with a domestic worker who worked from Monday to Friday in the home of a 91-year-old woman since 2014. The worker began a temporary disability due to illness common in June 2017 and, later, due to an accident at work, when he hurt his wrist after falling while working.
On July 21, he was informed by SMS that on August 4 the employment relationship had been resolved and that he would be notified to collect his belongings.
Days later, on the 28th, in another SMS, they told her to collect her belongings, at which point she announced that she was pregnant.
On August 4, she was given the employer's withdrawal document, which the worker signed non-compliant. In addition, the settlement amounting to 2,316 euros was paid, which included the compensation for withdrawal of 1,216 euros. The employee finally did not give birth. A Bilbao Social Court declared the dismissal inadmissible and the Superior Court of Justice of the Basque Country declared it null.
The Chamber dismisses the appeal filed by the employer against the judgment under appeal, in which she stated that at the time of the dismissal she was unaware of the existence of the domestic employee's pregnancy, for which reason the enhanced protection of dismissal could not be applied in this case of article 55.5 b) of the Workers' Statute.
In his sentence, a report by Judge Ignacio García-Perrote, it is indicated that in this case the employer failed to comply with the requirements established by article 11.3 of the Workers' Statute, since the communication of July 21, 2017 did not state clear and unequivocal the company's will to terminate the employment relationship by withdrawal, nor was compensation in cash made available to the worker.
It points out that, in accordance with Royal Decree 1620/2011, "this breach has the consequence that it is legally assumed that there is a dismissal and not before a business withdrawal». And remember that, in the provisions for dismissal of the worker, article 55.5 b) of the Workers' Statute provides for the objective nullity of the dismissal of pregnant workers.
Consequently, from the perspective of the regulations governing the dismissal of a domestic worker, the court concludes, the objective protection of pregnancy provided for in article 55.5 b) of the Workers' Statute is applicable.
The Chamber applies the criterion of the gender perspective to this assumption and points out that pregnancy is a differential element that, for obvious reasons, exclusively affects women. Likewise, it adds that it is well known that Royal Decree 1620/2011, on the special labor relationship of the family home service, is applied to the absolute majority of women.
“Finally, in case any doubt could continue to arise, the gender perspective that must govern the interpretation and application of the regulations (...) also leads to the interpretation that the objective protection of pregnancy must be applied to the termination of the employment contract. of a domestic worker," she says.