Declared null the dismissal of a worker who refused to have sex with her boss | My Rights | Economy


It happened in December 2019 in a pub in Murcia, after the company’s Christmas lunch. Her boss grabbed her butt and whispered in her ear “that he wanted to fuck her.” After discussing what happened with a colleague, she decided to leave and return to her house. Two days later, he apologized because “it was not the place or the way.” At that moment, he took the opportunity to tell her that he was “very happy” with his work, but that there were going to be changes in the company and that he had to think about “what he wanted to do to keep his job”. Only eight days after the incident, they informed him that he was out and gave him a severance pay.

This is the story that can be read in the judgment of the Superior Court of Justice (TSJ) of Murcia of March 8, which has confirmed the nullity of the dismissal and the sanction of 15,000 euros to the company, an opposition academy, for violating the sexual freedom of the worker. Although the company claimed that she fired the employee because she had finished the project for which she was hired, the magistrates determine that she was fired from her because she refused to have sex with her boss.

The ruling, which confirms the ruling of the social court number 8 of Murcia on April 27, 2021, concludes that the employee’s dismissal “did not have a reasonable justified reason.” As verified, other workers continued to carry out the activity of the worker. However, he stresses, there are “sufficient rational indications to understand that there has been a situation of sexual harassment on the part of the employer.” For this reason, the dismissal is invalid and the company must compensate the woman with 15,000 euros, the price that justice stipulates to repair the pain caused. In addition, you must also bear the expenses of the lawyer of her former employee (500 euros). The sentence can be appealed before the Supreme Court.

recorded apologies

Among the evidence provided in the procedure, there was one that betrayed the former boss. The woman, hired a few months earlier as an administrative assistant, delivered an audio in which her superior acknowledged the facts and apologized for her behavior two days later. However, she justified herself by saying that perhaps it was not the right place or the right way to start something like this or that “in another place it could be different”. All this, to end up insinuating to her subordinate that she had to jump through hoops. According to the resolution, she told him that there were going to be changes in the company soon, that he was very happy with the development of his work, but that he had to go thinking “what do I want to do to keep my job”.

The conversation with the recorded confession, together with the testimony of some colleagues and the statements of the employee and her boss, were sufficient indications to determine that there was sexual harassment. The magistrates connect the dots and consider that what put the worker on the street was the rejection of the sexual propositions of her superior and not the termination of the contract. As stated in their resolution, the dismissal was “exclusively as a result of this refusal.” Especially when at that time, despite what the employer alleged, she had not yet completed the project for which she had been hired. In fact, other workers continued with the activity (preparing a bank of questions) after the woman was struck down and forced to sign the settlement.

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The magistrates of the Murcian court endorse the criteria and arguments used by the social judge both to determine the nullity of the dismissal of the harassed worker, and to ratify the compensation of 15,000 euros in favor of the victim. As they indicate, the company did not dispel the evidence indicating that she had been fired for not sleeping with her boss.

On the other hand, despite the fact that the company insisted that it should not compensate the employee, the court obliges it to compensate her for the damage caused. “It cannot be argued, without further ado, that the mere declaration of the dismissal as null implies a clear reparation that includes moral aspects, since the facts that determine the nullity of the dismissal and the termination of the employment relationship are attacks on sexual freedom and dignity. of the working woman, which entails a high burden of non-pecuniary damage projected on the intimate assets of the person, with suffering from touching, which translates in the person some damages, which the Magistrate of instance describes as moral and psychological, and whose violation has the character of a very serious infraction ”, reflect the magistrates.

Christmas dinners

It is not the first conviction for harassing behavior during company Christmas celebrations. In November 2020, the TSJ of Madrid confirmed the dismissal of a boss for sexual harassment of his subordinate. The resolution considers it proven that the worker felt harassed by her superior and not simply courted by her, as the manager tried to defend to invalidate her dismissal.

According to the proven facts of the resolution, during the company’s Christmas cocktail party, the worker went out to smoke in a nearby open space, where she met her boss. The worker, hired as a warehouse girl for three months, started a conversation with her superior, in order to ask her about her development and her consideration at work. However, he took advantage of her moment to establish physical contact with her (he managed to touch her ass) and suggest that she continue the party in a hotel room, an invitation that she repeatedly refused and proceeded to leave the place.

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