Nullity of the dismissal of a worker while she was undergoing in vitro fertilisation treatment.

Workers who are pregnant or in a situation of reduced working hours to care for a minor child have special protection in our labour law and as such the dismissal of workers in this situation is presumed to be null and void.

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Specifically, article 54.5 of the Workers' Statute establishes:

• Dismissal will be null and void if it is based on any of the causes of discrimination prohibited by the Constitution or the law, or if it occurs in violation of fundamental rights and public freedoms of the worker.

Dismissal shall also be null and void in the following cases:

• (a) That of workers during periods of suspension of the employment contract due to maternity, adoption, foster care for the purpose of adoption, fostering, paternity, risk during pregnancy or risk during breastfeeding referred to in Articles 45.1.d) and e) or due to illness caused by pregnancy, childbirth or breastfeeding, or that notified on a date such that the period of notice granted ends within these periods.
• b) That of pregnant workers, from the date on which the pregnancy begins until the beginning of the period of suspension referred to in point a); that of workers who have requested or are taking leave as referred to in Articles 37.4, 5 and 6, or who have requested or are taking leave as referred to in Article 46; and that of female workers who have requested or are taking leave as referred to in Article 46. 3; and that of female workers who are victims of gender-based violence for exercising their rights to reduce or rearrange their working time, geographical mobility, change of work centre or suspension of the employment relationship under the terms and conditions recognised in this law.
• c) That of workers after having returned to work at the end of the periods of suspension of the contract due to maternity, adoption, delegation of guardianship, foster care or paternity referred to in Article 45.1.d), provided that no more than nine months have elapsed since the date of birth, adoption, delegation of guardianship or foster care of the child or minor.

The provisions of the above paragraphs shall apply unless, in such cases, the dismissal is declared to be justified for reasons unrelated to pregnancy or to the exercise of the right to the leave of absence and leave of absence mentioned above.

The null dismissal will have the effect of immediate reinstatement of the worker, with payment of the wages lost.

Today we bring up a case judged by the Supreme Court of Catalonia in which a worker was dismissed while undergoing in vitro fertilisation treatment.

The aforementioned ruling establishes that the dismissal of a worker undergoing in vitro fertilisation, with the knowledge of the company, when the transfer of sperm to the woman's uterus has not yet taken place, does not apply to the objective nullity that protects pregnant women, but it can be a cause of nullity for direct discrimination on grounds of sex if the company does not demonstrate the cause of dismissal unrelated to this situation.

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