Nullity of the dismissal of a pregnant worker. Objective and automatic nature

Nullity of the dismissal of a pregnant worker. Objective and automatic nature

According to a judgement to which our law firm has had access, the Supreme Court, in a judgement handed down on 31.10.2013, agreed to uphold the appeal for the unification of doctrine and declared the dismissal of the pregnant worker to be null and void.

Art. 55.5.b ET is an objective nullity, different from the nullity on grounds of discrimination contemplated in its paragraph 1; a guarantee that operates objectively and automatically, linked exclusively to the accreditation of the pregnancy of the worker and the unfairness of her dismissal (FJ 2).

"SECOND. The Chamber's doctrine has already been unified since our judgement of 17 October 2008 (R. 1957/07), followed, at least, in addition to that invoked here by way of contrast (SC 6-5-2009, R. 2063/08), by those of 16-1-2009, R. 1758/08, 17-3-2009, R. 2251/08, and 13-4-2009, R. 2251/08, and 13-4-2009, R. 1758/08. 2251/08, and 13-4-2009, R. 2251/08, which, applying the doctrine of STC 92/2008, rectified previous case law and declared that nullity is the classification applicable to dismissals of pregnant workers that are not considered to be justified.

As summarised in one of the aforementioned precedents, "as the Constitutional Court pointed out in judgement 92/2008, the amendment introduced by Law 39/1999 to article 55 of the Workers' Statute consisted of introducing various grounds for nullity related to pregnancy, maternity and the enjoyment of certain parental leave, and that in the specific case of article 55. 5.b) of the Workers' Statute, an analysis of its wording and its purpose does not allow us to appreciate that the legislator has established as a requirement for the declaration of nullity of unfair dismissals carried out during the period of pregnancy of a worker the accreditation of prior knowledge of the pregnancy by the employer. On the contrary, we must consider that we are dealing with a guarantee that operates with an objective and automatic character that is exclusively linked to the accreditation of the worker's pregnancy and to the dismissal not being considered fair, without contemplating any specific requirement of communication of the pregnancy to the employer, or of prior knowledge of the fact of the pregnancy on the part of the employer. In this way, the legislator has configured a mechanism of reinforced guarantee in the protection of pregnant workers insofar as it exempts the need to demonstrate knowledge by a third party of a fact that belongs to the most intimate sphere of the person and which, on the other hand, in practice presents evident difficulties of accreditation, which, without doubt, the legislator has tried to avoid in order to achieve more effective protection of pregnant workers against dismissal" (STS 17-3-2009, FJ 2º).

Furthermore, as we have also stated in the referential judgment, thus following the constitutional doctrine, the provision here denounced as infringed (art. 55.5.b ET-, "is "configurator of an objective nullity, different from the nullity on grounds of discrimination contemplated in the first paragraph and which acts in any situation of pregnancy, regardless of whether or not there is evidence of discriminatory treatment or even whether or not there is a discriminatory motive" (STS 6-5-2009, FJ 3º.e)".

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