The contentious-administrative court number 2 of Vigo has recognized the right of a domestic worker to receive an unemployment benefit, something that the Social Security had repeatedly denied her in recent years, alleging that the labor regime for this group does not allowed it. In the ruling, known this Wednesday, this court endorses the conclusions issued by the Court of Justice of the European Union (CJEU), to which the judge who issued a ruling this Wednesday consulted if this refusal constituted indirect discrimination based on sex , and, therefore, violated the framework of community law. Once the position of the CJEU was known, which ruled in the affirmative on the matter a month ago, the Galician courtroom has endorsed that ruling, recognizing the right of the complainant to receive a benefit for the work carried out.
According to Javier de Cominges, the lawyer from Vento Abogados&Asesores who has handled the complainant’s case, since she filed the first lawsuit in 2019, the sentence recognizes that “we are facing a totally feminized group”, and that, for this reason, that “there is indirect discrimination based on sex”. In addition, the ruling itself debunks one of the main arguments put forward by the General Treasury of Social Security (TGSS) which argued that “an increase in protective action” -which would result from the recognition of the right to unemployment- could result in ” negatively” on this group, “and simultaneously increase the figures of illegal work” that are produced in it.
“Notwithstanding the purely speculative nature of the approach, we are reluctant to accept the teleological dilemma in which the TGSS seems to place us,” the ruling indicates. And it goes further: “The superior scope of the protective action does not manifest itself as an obstacle to its achievement, on the contrary, it will operate as a reinforcement”. In addition, it goes a step further by ensuring that “the social helplessness generated by the lack of protective action transcends the simple impossibility of receiving unemployment benefit and projects its unfavorable economic effects on the worker, deepening the inequality of treatment with respect to others. workers”.
The ruling of the Vigo court not only includes the arguments put forward by the European Court, but also determines the need for a reform of the system for domestic workers to prevent situations of this type from occurring again. “It recognizes that we are facing a regulatory vacuum in which it will be necessary for the legislator to address it considering the peculiarities of the special regime,” adds De Cominges in his analysis.
The support of European justice for the case of Mariana, as the plaintiff is called, satisfied the claims of the worker and opened the doors for her union to be considered (labour) like the others. “It has been a hard process that began when I saw myself helpless in the face of an illness. It was like this: I got sick and I realized that she was completely helpless, without any guarantees or rights, with the uncertainty of what would happen in the future. That is why I made the decision to go to court, hoping that something would change. And so it has happened. I am very satisfied with having made that decision and with the result that we have obtained”, acknowledged the worker herself, through a statement, after the CJEU ruling was known.
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Despite the fact that the forcefulness of the latest European ruling has been definitive so that the different public bodies involved have found themselves in the position of having to mend this situation ―sources from the Ministry of Labor have picked up the glove and are already working on recognition of unemployment to this group―, the community court had already ruled in the same sense in similar situations. First in 2012, when it established that the contributory pension in Spain indirectly discriminated against women, due to the greater number of women in part-time jobs; and then in 2019, by resolving in the same way regarding the calculation of unemployment for those who had worked part-time.
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