Is the Dismissal of an Employee Who Is about to Become a Father Null and Void?

Monika Bertram Abogada [email protected] +34 91 319 96 86

1. Dismissal on grounds of discrimination prohibited by the constitution or the law; dismissal in violation of fundamental rights and public freedoms.
2. Dismissal occurring during periods of suspension from work due to childbirth, adoption, custody prior to adoption, initiation of foster care, risks during pregnancy or breastfeeding, illness caused by pregnancy, childbirth or breastfeeding, dismissal notified on a date such that the period of notice ends within these periods.
3. Dismissal of pregnant employees.
4. Dismissal of an employee who has requested one of the leaves regulated in Articles 37.4, 37.5 and 37.6 of the Workers’ Statute or who is enjoying them.
5. Dismissal of an employee who has requested or is enjoying a leave of absence to care for a child.
6. Dismissal of female employees who are victims of gender violence for exercising their right to due process.
7. Dismissal of an employee after having returned to work at the end of a period of suspension as foreseen in Article 45.1.d) of the Workers’ Statute, due to childbirth, adoption, custody prior to foster care or adoption, provided that no more than twelve months have elapsed since the date of birth, adoption or initiation of foster care.

If the dismissal by the employer is declared null and void, this will entail the immediate reinstatement of the employee as well as the retroactive payment of the wages not received.

On closer examination of the law, it becomes evident that the Workers’ Statute does not expressly state that the dismissal of an employee whose partner is pregnant can give rise to a declaration of nullity with the inherent consequences of such a declaration.

Notwithstanding the above – and bearing in mind that the principle of equality and non-discrimination must be bidirectional and therefore protect all genders and that case law is constantly evolving – on 16 April 2021, the High Court of Justice of Galicia in its judgment 1584/2054 (filing no. 754/2021) declared null and void the dismissal of an employee who had informed his company in advance that his wife was pregnant and was dismissed on the same day on which the child was born.

To reach this decision and to order the company to pay compensation in the amount of €6,251 in damages for breach of fundamental rights, the Galicia High Court took into consideration both a judgment of 17 July 2008 by the European Court of Justice (C-303/2006 – Coleman) and the Spanish Constitutional Court’s judgment 71/2020 of 29 June (filing no. 6369/2018) and found on the basis of these judgments, that the employee had been subjected to “discrimination by association“, i.e. that he has been treated less favourably because of his relationship/association with an employee that does have one of the protected characteristics or one of the prohibited grounds for discrimination, despite the fact that he, the person alleging discriminatory treatment, does not possess that characteristic.

This means in the case at hand that, although the employee had neither been pregnant nor given birth, he did become a father and was dismissed as a reaction to his wife’s pregnancy and motherhood as well as to its consequences, the main one being his taking of parental leave.

Due to the above and because of the immediacy of the dismissal as well as the fact that the employer was unable to prove that the dismissal was fair, the Galicia High Court concluded that it was a discriminatory act and should consequently be declared null and void under the provisions of art. 55.5 of the Workers’ Statute.

As significant as this recent ruling may be, other courts have held that the dismissal of an employee who had previously informed his employer of his forthcoming paternity did not constitute discrimination by association. Such rulings have been based on the finding that the employee in question was not able to provide any prima facie evidence of discrimination and that, therefore, the dismissal should not be declared null and void. An example of this is judgment 167/2022 of 21 March 2022 (filing no. 72/2022) from the High Court of Justice of Madrid.

Within this context and considering that, pursuant to Article 1.6 of the Civil Code, the Galicia High Court’s ruling does not constitute binding case law, it stands to reason that, as regards pregnancy, it is the pregnant employee who de facto enjoys special protection under Articles 53.4 and 55.4 of the Workers’ Statute. This is because the purpose of the law is to provide her with stronger-than-ordinary protection against discrimination, exempting her from having to furnish evidence of a violation of her fundamental right.

This should in no way preclude employees like the Galician gentleman, who consider that that they could provide prima facie evidence of discrimination in the context of a lawsuit, from seeking to have their dismissal declared null and void on the grounds that they have been victims of discrimination by association.