Domestic workers in this country return to the present, as a result of a recent judgment of the Court of Justice of the European Union, in which it is ruled that The exclusion of domestic workers from unemployment benefits, which is included in Spanish regulations, is contrary to Union law, considering that this group, almost exclusively women, constitutes indirect discrimination based on sex.
The said judgment originates from a claim filed by a domestic worker in November 2019, before the General Treasury of the Social Security, in which he requested the contribution for the unemployment contingency, in order to acquire the right to unemployment benefits. The Treasury denied the request, based on the fact that the possibility of contributing to said special system, in order to obtain protection against the risk of unemployment, is expressly excluded in Spanish regulations.
The worker filed an appeal before the Contentious-Administrative Court No. 2 of Vigo, claiming that, the Spanish regulations place domestic employees in a situation of social helplessness, when they lose their job for reasons that are not attributable to them. Given this circumstance raised by the worker, a procedure of Preliminary request filed by the Contentious-Administrative Court No. 2 of Vigo, received at the Court of Justice on August 14, 2020.
In its judgment, the Court of Justice declared that the Social Security Equality Directive opposes a national provision that excludes unemployment benefits from social security benefits, granted to domestic employees by a statutory social security scheme. The ruling rejects that said provision places female workers at a particular disadvantage with respect to male workers and is not justified by objective factors unrelated to any discrimination based on sex.
Women represent 95% of this group and according to the Court of Justice, this exclusion entails a lack of social protection for domestic employees, translating into a greater situation of social helplessness, leaving, therefore, in the hands of the Spanish justice system to resolve this procedure, in accordance with the indications provided.
On March 17 of the present, the Contentious-Administrative Court No. 2 of Vigo, partially upheld the appeal filed by the worker against the Social Security and its resolution, inadmissible the appeal filed against the resolution that dismissed the request for contribution to unemployment protection, declaring his disagreement.
The judge admits that there is a regulatory vacuum, and it is necessary to address this issue given the particularities of the special regime, urging the General Treasury of Social Security to “remove without delay the obstacles that impede or hinder the right..
The normative regulation in some of the Social Security schemes, whether for domestic employees or the self-employed, has been in demand for a long time. Aspects such as the proportionality between the contribution and the benefits, as well as adjusting the contribution more appropriately based on economic returns, will be modified. It is the beginning of a long way to go, in terms of access to unemployment benefits for domestic workers.
Joaquín Gavilá Cell
Head of the Labor Department Carrau Corporación
- This article has been published in Bulletin of the Official College of Administrative Managers of Valencia.