Firing a secretly-pregnant employee is illegal in Spain

31st July 2008, Comments 0 comments

A constitutional court rules that mothers-to-be cannot be fired even if they have kept their pregnancy a secret.

31 July 2008

MADRID - Thanks to a Constitutional Court ruling on Tuesday, sacking an employee in Spain because she is pregnant is illegal, even if the person keeps the matter a secret from her employer.

The court based its ruling on article 55.5 of the Workers' Statute of 1999, which clearly states that an employee cannot be fired because she is pregnant.

But the road to the Constitutional Court ruling has taken a long and winding path, with the rulings made by courts such as the High Court of Extremadura and Supreme Court, which interpreted the law in a different manner.

However, after four and a half years of deliberations, it is now clear that a pregnant employee cannot be dismissed from work.

Judges that had previously handled the case of a pregnant woman dismissed from her job turned it down by arguing that she had kept the matter a secret from her employer. Article 55.5 of the Workers' Statute weighed the most in Constitutional Court's ruling.

It states clearly that all firings of "pregnant workers from the date of the pregnancy" to the when maternity leave begins are "null and void".

This key article of the statute was overlooked by a judge and two courts in the case of María Jesús Pérez who, on becoming pregnant, was forced to relinquish her job as administrative assistant at the Badajoz Provincial Metal Association.

The company justified the dismissal on the grounds "that [her] salary would be costlier [to the company]" and that her work was "unnecessary," or redundant, while it did admit, however, that despite her job's irrelevance, it immediately offered her compensation.

Believing that she was wronged by her employer only because she was pregnant, which is strictly forbidden in the Workers' Statute because it is discriminatory, Pérez decided to take the matter to the courts.

The first court to turn down her case was the lower court of Badajoz, which argued that it could not be proven that the company knew that the employee was pregnant.
"In not knowing the date when she became pregnant, it is unclear if it knew about it in the first place," the court argued.

The judge that ruled in the case said that even if the company had known about the woman's pregnancy, "which is reasonable to assume," the dismissal of the employee was "done for purely organisational reasons".

A similar decision was taken by the High Court of Extremadura, according to the recent ruling by the Constitutional Court although in a more specific manner. Instead of basing its decision on the Workers' Statute, it used a European Union directive and concluded that "a woman could be considered pregnant... only if she had informed her employer of her [pregnant] condition."

The High Court concluded that the directive was not defending gender equality, but motherhood.

Four years later and after going through three different courts, the Constitutional Court has finally ruled in favour of the pregnant employee, which turned out to be a direct blow to the judges who had handled the case in the first place. The court said that any arguments used to interpret article 55.5 of the Workers' Statute are null and void if they "hinge exclusively on pregnancy", according to Judge María Emilia Casas.

The crucial article that the Constitutional Court basis its landmark ruling on was renewed in 1999. Prior to that, dismissals were considered null and void when they were "due to discrimination that is already forbidden by the Constitution or in the law, or that may infringe on a person's fundamental rights."

Before the renewal of article 55.5 there was a lot of room for interpretation. The renewed article, however, leaves no room for doubt.

[El Pais / Manuel Altozano / Expatica]

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