The Supreme Court (TS) has established that for pregnant women to receive compensation for a null dismissal, it must be proven that they suffered discrimination due to their status, responding to a case referred to a worker of the Royal Spanish Football Federation (RFEF). ) whose appeal is rejected.
The RFEF notified the woman of her disciplinary dismissal, along with that of five other workers, alleging “continued and voluntary decrease in normal performance in her job.” It was then, at the same time of her dismissal, that the woman informed the Federation that she was pregnant.
A Madrid social court declared the dismissal null and void and ordered the worker to be reinstated, paying her the wages she had not received in all that time, about three and a half months – from the beginning of October 2021 to the end of January 2022.
As explained by the Social Chamber of TS, in a ruling to which Europa Press has had access, the Madrid court ruled this way due to the “legal imperative” of article 55.5 of the Workers’ Statute, which establishes that “the dismissal will be void (…) of pregnant workers”, unless the dismissal is declared for reasons unrelated to pregnancy, adds the high court, citing its own jurisprudence and that of the Constitutional Court.
Despite having won the case, the woman appealed, first before the Superior Court of Justice of Madrid (TSJM) and then before the Supreme Court, considering that said ruling contradicted a previous one where the right of the pregnant worker was also recognized. to collect compensation for having suffered a violation of fundamental rights, that is, discrimination based on sex.
The Supreme Court recognizes the discrepancy between both sentences and indicates that the question to be clarified is “whether, in the event that a disciplinary dismissal of a pregnant woman has occurred in which the cause has not been proven, the declaration of nullity that is inevitably linked to the violation of the fundamental right to equality and non-discrimination must always be accompanied by compensation” or only if a “specific violation” is proven.
For the Fourth Chamber, the correct interpretation is the one made by the Madrid court in this case, according to which “the qualification of a null dismissal because the worker is pregnant does not automatically mean that it infringes the fundamental right to non-discrimination due to reason of sex for the purposes of compensation, since to do so, it is necessary to provide evidence that allows causally connecting the adoption of the extinguishing measure with the pregnancy.”
“And, given that the existence of conduct by the company that shows that she was fired for being pregnant is not proven, the objective nullity is maintained,” he indicates.
In fact, it highlights that the appealed ruling includes “factors that point in a different direction, since it is proven that the company found out about the worker’s pregnancy at the time of delivery of the dismissal letter and that her dismissal coincided with the of five other workers”.
It also clarifies that the disciplinary dismissal of a pregnant worker can be declared appropriate when “the contractual breaches established in the dismissal letter have been proven and deserve consideration as serious and culpable in the terminology of the Workers’ Statute.”
At the same time, it takes the opportunity to remember that, “invariably”, both the Supreme Court and the Constitutional Court “have been declaring that a dismissal motivated by the worker’s pregnancy should be considered null and void, because it is discriminatory.”
And this, he explains, because “the risk of losing employment as a consequence of motherhood constitutes the most important problem – along with pay inequality – that confronts the effectiveness of the principle of non-discrimination based on sex in the field of labor relations”.
