Article 55.5 of the Workers’ Statute (ET) in Spain, establishes the principle of nullity regarding the dismissal of pregnant or breastfeeding workers. Exceptionally, the dismissal will be declared valid for reasons unrelated to the pregnancy or the exercise of the right to leave and leave of absence.
Beneficiaries of the regulation
The protection under Article 55.5 of the Workers’ Statute and Directive 92/85/EEC applies to pregnant workers when the employer, without having been formally informed of the worker’s pregnancy, becomes aware of it (ECJ C 232/09 Danosa, of 11 November 2011).
Based on a biological and corporal definition of pregnancy, the ECJ case law (mandatory in all Member States) found that:
- The mere intention to become pregnant (ECJ C-506/06, of 26 February 2008) is not protected
- In the case of fertility treatments, the protection provided by Directive 92/85/ EEC and in Art. 55.5, has effect from the time the eggs are transferred to the womb (ECJ C-506/06, of 26 February 2008)
- The guarantees of protection do not apply to workers who resort to a surrogate to give birth to a child (ECJ 167-12 and 363-12, of 18 March 2014)
Dismissal of pregnant workers: nullity or source?
If the employer was aware of the worker’s pregnancy before dismissal:
- As a rule, the dismissal is void under Art. 55.5 ET
- Exceptionally, the dismissal will be declared admissible if the employer demonstrates that the dismissal is due to objective reasons unrelated to the pregnancy. Under Art.10 of Directive 92/85/EEC, these objective reasons may be:
Disciplinary causes
In its judgement of 10 February 2014, the High Court of Justice of Catalonia concludes that the legal protection during pregnancy is null upon the accreditation of a disciplinary cause justifying dismissal (in this case, punishment for misuse of the company’s internet and telephone line, violating the rules of good faith and committing abuse of trust).
Negative economic situation
In its judgement of 13 October 2014, the High Court of Madrid found that the defendant company had adequately proved that its conduct was not based on a breach of the rights of pregnant workers, but on the negative economic situation of the company. The Court found full proof, already proving the legality of the statute and the source of the dismissal.
If the employer was unaware of the worker’s pregnancy before dismissal:
It should be noted that the protection of pregnant workers, being automatic and objective, is valid from the beginning of the pregnancy, regardless of whether or not the employer knew of it (judgement of the Supreme Court, of 3 October 2013). Therefore, a worker is not required to notify her employer of her pregnancy and the employer may not invoke the lack of notification as justification for dismissal.
The Spanish jurisprudence has been inclined to reject arguments based on ignorance of the worker’s state of pregnancy and has been accepted as a defence on rare occasions. Therefore, an employer unaware of a dismissed worker’s pregnancy will have to justify his or her actions in the same way as if he or she knew about the pregnancy.
Inés Ducom
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