Getting fired in SpainPregnant employee's dismissal during trial period not unfair

The Supreme Court has taken the opportunity of hearing a case involving the dismissal of a pregnant woman from her place of work to consider the boundaries of the employment protection laws in Spain, in particular Article 55.5.b of the Ley de Estatuto de los Trabajadores (Law  39/1999) which is the principal legislation in this area.

This particular piece of legislation renders invalid the dismissal of a woman from her employment from the moment she becomes pregnant until after the regulatory period of maternity leave. Art 55.5.b  states, and this is the case regardless of the motive for the dismissal and where it is demonstrated that the employer had no knowledge of the pregnancy:

“Dismissal in the following circumstances shall also be considered invalid:

…b) That of workers who are pregnant, from the date upon which they became pregnant until (…) the  period of maternity leave or those workers who are at the time on maternity leave or have requested maternity leave”

Once a dismissal has been declared invalid, the worker has the right to readmittance to her place of work and to receive any pay that she would have received for this period of work.

Trial Periods Not Covered

In this particular case the employee had become pregnant after being given a six month contract to work in the sales department of the respondent company, but was dismissed within the initial two month trial period for failing to reach the sales objectives. The company had claimed to be unaware of the fact that the employee was pregnant though the employee claimed that she had told her employers that she had become pregnant.  In their defence the employer said that they had also dismissed a male employee who had also failed to achieve the sales targets during the trial period.

The Supreme Court decided by a majority decision that, effectively the termination of the contract between the employee and the employer was not a dismissal as the trial period had not been exceeded.

While the Court affirmed that dismissal of an employee during the trial period would be invalid if it infringed fundamental rights, the dismissal of a male employee at the same time and for the same reasons evidenced that the motives for the dismissal did not relate to personal attributes of the employee i.e. such as her gender, but rather related to objective issues such as aptitude for the job.

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