Collective Dismissal and Pregnant Woman

Are Collective Dismissal and Pregnant Women compatible?

We often hear that a pregnant woman cannot be fired, however, such a statement is incorrect and misleading.

It is true that in the case of pregnant women there is special protection in the Spanish legal system, but this does not prevent an employer from terminating their employment contract. However, such termination of the contract must be duly justified, since if not, the dismissal cannot be declared unlawful, but rather objectively null and void, regardless of whether or not there are indications of discriminatory treatment or even if there is no discriminatory motive (Supreme Court of Justice of Asturias, No. 605/2018, March 6, Supreme Court of Justice of Andalusia, Seville, No. 466/2018, February 8).

Dismissals with discriminatory motivation

Article 108.2 of the Law Regulating Social Jurisdiction establishes that any dismissal for any of the reasons for discrimination set forth in the Constitution and the law, or that occurs in violation of fundamental rights and public liberties of the worker, is null and void.

If this assumption is taken to that of a pregnant woman, it would mean that the classification of the dismissal would become null and void due to the violation of the fundamental right to non-discrimination on the basis of gender, as long as the dismissal is  a result of the worker’s pregnancy, which a priori seems to require business knowledge of the circumstance.

In other words, the fact that it is a pregnant woman puts on the company the burden of proving why the cessation occurs by giving a reasonable explanation that clears up the indication that it is due to the pregancy.

The company is not presented with an impossible evidence, but it is demanded a reasonable explanation, which confirms its conduct as a non-conformity to the discrimination for the reason of being a pregnant woman, and that such circumstance is not a factor of the termination.

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Dismissals without a discriminatory motive

Besides that, and as already anticipated, even if there was no discriminatory motive, in case the dismissal was not duly justified, it would be qualified as null, for operating the so-called objective nullity, given that in the case of pregnant women there is no room for the qualification of improper termination of employment, by application of Article 108.2 paragraph b) of the Law Regulating Social Jurisdiction.

In other words, in the absence of a valid and accredited cause for the termination of an employment contract of a pregnant woman, the classification of the termination would be that of nullity, because of the so-called objective nullity, which operates, as its own nomenclature indicates, in an objective manner by the mere circumstance of the pregnancy of the worker, regardless of the knowledge of the company and regardless of whether or not there are indications of discriminatory treatment.

What happens when the dismissal of a pregnant woman takes place within the framework of a collective dismissal procedure with accredited  causes and which has ended with an agreement between the Company and the Workers’ representatives?

The Supreme Court, in Sentence nº 802/2018 of July 20th, has qualified as null the dismissal of a pregnant worker at the moment of dismissal, dismissal produced in the framework of a collective dismissal procedure for economic reasons whose concurrence was accredited by the end of the consultation period, because it understood that in the selection criteria  the reason for the dismissal of the employee is not justified.

The Tribunal understands that it is required that the employer specify the criteria taken into account to determine the workers affected by the dismissal, and that a mere nominal relationship is not adequate, since among them is the plaintiff, who had a reduced working day due to the care of a child and was pregnant at the time of the dismissal, so it must take into account the right to non-discrimination on gender grounds, as proclaimed in Article 14 of the Spanish Constitution.

It maintains that the generic criteria included in the dismissal letter do not provide any information that would permit the conclusion of the need to amortize the specific job of the plaintiff, and the requirement to include the criteria for designation, with the inclusion of a list of names of those affected, cannot be considered as having been fulfilled.

If this article has been of interest, we also suggest you to read the following article published on our website:

Collective Dismissal: Can I discuss the cause of the dismissal?