The general counsel of the Court of Justice of the EU maintains that excluding domestic workers from unemployment benefits in Spain is contrary to Community law. According to the Pole Maciej Szpunar, the fact that the protection conferred by the special social security system for domestic employees provided for by Spanish legislation does not include protection against unemployment, which, in his opinion, constitutes indirect discrimination on grounds of sex and not justified.
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Consequently, the attorney general proposes, in conclusions that are not binding but are often followed in judgments, that the court rule that the directive opposes the national provision that excludes unemployment benefits from recognized benefits to employees of household, when these employees are almost exclusively women.
The case analyzed in Luxembourg has to do with a worker, a domestic worker who works for an employer, a natural person. The worker has been affiliated with this special system since January 2011.
In November 2019, the worker submitted to the General Treasury of Social Security (TGSS) a request for a contribution to unemployment protection in order to acquire the right to the corresponding benefit. His employer was willing to pay the requested contribution.
However, the TGSS denied his application because Spanish legislation expressly excludes the possibility of contributing to the special system in order to obtain unemployment protection.
Consequently, the worker appealed to the Vigo Contentious-Administrative Court, alleging, in essence, that the national provision leaves domestic workers in a situation of social distress when their employment relationship is terminated for reasons other than are attributable to them.
In his view, in effect, this situation translates into the impossibility of accessing both unemployment benefit and any other social assistance that requires the exhaustion of the right to that benefit.
In this context, the Spanish judge emphasizes that the category of workers in question constitutes a group made up almost exclusively of female persons, which is why it asks the Court of Justice to interpret the directive on the principle of equality in matters of social security, to determine if, in this case, there is indirect discrimination on grounds of sex, prohibited by said directive.
In his conclusions presented this Thursday, General Counsel Szpunar points out that member states must respect the principle of non-discrimination on grounds of sex in matters of social security. Contrary to what the Spanish Government alleges, the General Counsel understands that the exclusion provided for by national legislation establishes a particular disadvantage for domestic workers.
Sources from the Galician Court explain to elDiario.es that “the Contentious-Administrative Court number 2 of Vigo raised a preliminary ruling before the CJEU to rule on whether the internal legal system contradicts the Community in the law regulating security social and to what extent it should be modified “, informs Gonzalo Cortizo.
“The court, therefore,” continue the sources, “has suspended the procedure until the CJEU decides. The general counsel pronounces on the matter; although it is an opinion that the CJEU usually takes into account, it is not binding and Therefore, we must wait for the CJEU to resolve. “.
95% of female workers
The attorney general also points out that, according to national legislation, all employed workers included in the general social security scheme are in principle entitled to unemployment benefits and that, within this group, the proportion of employees men and women is more or less similar.
On the other hand, this proportion differs considerably within the group of workers to whom the special system in question applies, since women represent more than 95% of the workers included in that system.
Therefore, the contested exclusion clause negatively affects a significantly higher proportion of female domestic workers than male ones.
The General Counsel then examines whether this unequal treatment to the detriment of female domestic workers can be justified by objective factors and unrelated to any discrimination on the grounds of sex.
The TGSS and the Spanish Government argued that the difference in treatment was justified by the specific characteristics of the category of domestic workers and the status of their employers, as well as by objectives of protection of workers, of protection of the level of occupation in this sector and the fight against submerged work and fraud.
Thus, the General Counsel considers that these objectives are not unrelated to any discrimination based on sex and, therefore, cannot justify prejudicial discrimination against female persons.
In Szpunar’s view, the reasons based on the characteristics of domestic workers (low-skilled workers who earn the minimum wage) or their employers (heads of households) seem to be based rather on gender stereotypes and, therefore, they are hardly unrelated to discrimination on the grounds of sex.
The general counsel also rejects the allegation that a possible protection of domestic workers against unemployment could incite them to fraud: “If this were the case, then the same would happen in the case of all low-skilled labor market workers and that they receive the minimum wage in other sectors “.
Regarding the objective of protecting the level of occupation of the activity category of domestic workers, the General Counsel underlines that “the exclusion in question leads to reinforcing the traditional social conception of roles, allowing, moreover, not only exploiting the structurally weaker position of the people who make up this sector, but also undervaluing their work, which should, on the contrary, be recognized and valued by society “.
Szpunar understands that, in any case, the exclusion clause in question is not adequate to guarantee the objectives of the fight against underground work and fraud and the protection of employment, “insofar as it does not seem to truly respond to the effort to achieve these objectives or to be applied in a consistent and systematic way. ”
It also considers that this clause, “by prohibiting in absolute terms all domestic workers from accessing unemployment benefit, goes beyond what is necessary to achieve the objectives pursued.”