The historic European sentence on the discrimination of domestic workers in Spain already has direct effects for several employees. Waiting for the Government to regulate the right to unemployment, the Spanish courts are beginning to resolve cases according to the doctrine of the CJEU of last February 24 in several sentences that recognize greater social protection for female workers, the only sector without the right to unemployment and that is framed in a special system with several abnormalities with respect to the whole of the workers.
European Justice concludes that Spain discriminates against domestic workers by denying them unemployment
At the moment there are already, at least, three sentences that rule in favor of domestic workers who denounced the Administration. Two refer to the right to unemployment and one to Fogasa coverage. The Second Vice President and Minister of Labor, Yolanda Díaz, has announced that the right to strike will be regulated this year and that “other discrimination” against the group will also be addressed, among which she mentioned dismissal.
This Sunday, March 27, groups of domestic and care workers will stage sit-ins for the right to unemployment and the ratification of ILO Convention 189. The actions seek to pressure the Executive and also claim the working conditions of the sector a few days before its international day, on March 30.
Right to the protection of the Fogasa
The first court that has taken the witness of the European was the court number 32 of the Social of Barcelona, which resolved the lawsuit of a domestic worker defended by the cooperative Colectivo Ronda. Judge Marta Molist relies on the arguments of the EU judges on the indirect discrimination based on gender of the group, with more than 90% of women, although in this case she does not refer to the denial of unemployment protection, but to their exclusion from the protection of Fogasa (Salary Guarantee Fund).
Fogasa is a public body that guarantees workers the receipt of wages, as well as compensation for dismissal or termination of the employment relationship, unpaid due to insolvency or bankruptcy proceedings of the employer. As with unemployment, domestic workers cannot contribute to this fund and do not obtain its protection either. In the case defended by Nacho Parra, a lawyer for Colectivo Ronda, the domestic worker had managed to have her dismissal classified as unfair, but not for the employer to pay her the corresponding 6,003.29 euros of compensation, since her death was declared. insolvency.
Judge Molist estimates the worker’s claim and condemns Fogasa to pay compensation, a sentence that can be appealed by the agency. “Such a solution cannot be prevented by the fact that the protection has not been quoted by the FGS [Fogasa] since, even being true, such lack of contribution is due to that legislative option excluding that protection that incurs in the normative infractions denounced and that, as such, cannot generate that effect of denying the benefit, ”says the sentence.
Unemployment subsidy for people over 52 years of age
Two days later, the Superior Court of Justice (TSJ) of Catalonia also signed a ruling following the criteria of the Grand Chamber of Luxembourg. In a ruling dated March 16, the Social Chamber of the Catalan court upheld the appeal of a domestic worker who had been denied unemployment protection in the first instance.
The TJSC obliges the State Public Employment Service (SEPE) to pay the unemployment subsidy for unemployed people over 52 years of age to the worker, who obtained a refusal from the public body for not having contributed for unemployment in her last two contracts, in those who worked as a domestic worker.
The reason is that, as in the case of the Galician worker who reached European instances, in the case of the Barcelona domestic worker examined by the TSJC, Social Security has not presented allegations to demonstrate “the absence of discriminatory treatment” to this group of workers.
Consequently, the judges assume that, as the worker’s defense raised, the “discrimination” in the unemployment situation of domestic workers must be corrected, a sector that is found as the only job opportunity for some people who are violated. their “fundamental right of access to the world of work” in equality. The judgment of the TSJC is not final, the Prosecutor’s Office or the SEPE have the right to present an appeal for unification of doctrine before the Supreme Court.
Final judgment of the case that reached Luxembourg
Finally, this week the judgment of the Social Court number 2 of Vigo, of March 17, which resolved the case of the Galician domestic worker who obtained the historic sentence for this group of employees, was known. Judge Marcos Amboage, who took the case to Luxembourg, takes the floor of the CJEU judges and, following their arguments, concludes the existence of indirect discrimination based on gender in the denial of unemployment protection to these workers.
The difference in treatment of a feminized group, close to 100% women, “is not supported by objective factors or legitimate purposes that explain it,” Amboage resolves. She rejects the argument of the Social Security that the contribution for unemployment could suppose a reduction of the affiliation in the sector. “Without prejudice to the purely speculative nature of the approach”, indicates the judge, he opts for “the harmony of the goals” at stake: both the social protection of the group, and the fight against submerged employment and fraud in the sector.
The judge also highlights the “collateral effects” of denying unemployment to these employees, since they cannot access other associated subsidies, such as the one for unemployed people over 52 years of age. “The social helplessness generated by the lack of protective action transcends the simple impossibility of receiving the unemployment benefit and projects its unfavorable economic effects on the worker, deepening the inequality of treatment with respect to other workers.”
The sentence recognizes the Galician worker the right to contribute for unemployment, although not retroactively since the petition was registered with the INSS, but since the sentence was ruled. The magistrate urges the Government to regulate this issue: to “remove without delay the obstacles that prevent or hinder that right.” Failure to do so voluntarily can lead to a “forced execution,” says the sentence.