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European justice considers it illegal to deny unemployment to domestic workers

The Spanish legislation that excludes from unemployment benefits the housemaids it is discriminatory and contrary to European law. The Court of Justice of the European Union has ruled this Thursday that the Spanish regulations violate the european equality directive in terms of social security to the extent that it places female workers at a disadvantage compared to other workers and is not justified by objective factors unrelated to any discrimination based on sex.

The case responds to the dispute raised by a domestic worker, affiliated with the special social security system since January 2011 and who in November 2019 requested the General Treasury of the Social Security to contribute to unemployment protection to acquire the right to a benefit. Her employer was willing to pay the contribution but the TGSS denied the request on the grounds that the possibility of contributing to said special system to obtain protection against the risk of unemployment is expressly excluded by Spanish regulations.

The worker then decided to appeal to the Contentious-Administrative Court No. 2 of Vigo, alleging that Spanish regulations place domestic employees in a situation of social helplessness when they lose their jobs for reasons that are not attributable to them. As she argued, this situation prevents her from accessing both the unemployment benefit and any other social assistance subject to the extinction of the right to said benefit. As a result of the case, the Galician court asked the CJEU to interpret the case in light of the directive on equality in social security matters to determine whether there is indirect discrimination based on sex given that the affected group is eminently female.

In their reasoning, the judges follow the line marked out at the end of September by the attorney general, Maciej Szpunar, and conclude that the national legislation would be particularly detrimental to female workers and would therefore entail indirect discrimination on grounds of sex contrary to the Directive. In addition, although they admit that the objectives mentioned are legitimate from the point of view of social policy -maintaining employment rates and combating illegal work and social security fraud- they conclude that the Spanish regulations “do not seem adequate to achieve them since it does not seem to be applied in a coherent and systematic way in light of said objectives”.

Risks similar to other groups

The judgment also emphasizes that the group of workers excluded from unemployment protection is not distinguished in a pertinent way from other groups of workers who are not. Emphasizes that these other groups of workers, whose employment relationship is carried out at home for non-professional employers, or whose labor sector presents the same peculiarities in terms of employment rate, qualification and remuneration as that of domestic employees, similar risks in terms of reduced employment rates, social security fraud and recourse to illegal work, but they are all covered by unemployment protection.

In addition, they maintain that the inclusion in the Special System for Domestic Employees entitles you, in principle, to all the benefits granted by the Spanish General Social Security Scheme, except unemployment benefits. The CJEU thus concludes that there is a lack of coherence, to the extent that these other benefits apparently present the same risks of social security fraud as unemployment benefits. For this reason, and as recommended by the attorney general, he concludes that the Spanish legislation seems to go beyond what is necessary to achieve the aforementioned objectives and that exclusion entails a greater lack of social protection for domestic employees, which translates into a situation of social helplessness.