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Author: Olga Galindo.

The High Court of Justice of Catalonia declared null and void the dismissal of a worker after announcing the second pregnancy of his wife on the grounds of violation of the fundamental right to non-discrimination on the grounds of gender and discrimination by association linked to the fact that his wife was pregnant. The Court declared the dismissal null and void and ordered the company to reinstate the employee in his job under the same conditions as before the dismissal, as well as to pay compensation for the moral damage caused.

In the present case, the plaintiff, who had been providing his services as a salesman for the company, had previously taken paternity leave due to the birth of his first child, and during the time of his leave the company began a process of corporate reorganization, which caused a series of changes and departures in the area to which the worker belonged.

Subsequent to his reincorporation, the plaintiff, and after communicating that his wife was pregnant with their second child, was dismissed, the company justifying the termination of his employment relationship on objective causes derived from the business reorganization that had been taking place in his work team. In view of this communication, the employee filed a lawsuit for dismissal, which was partially upheld by the Court of Appeals, which held that the dismissal was unfair and not null and void, and did not consider the future paternity of the employee as an element of discrimination, and all this because the future father is not specifically protected by Article 14 of the Spanish Constitution.

The employee expressed his disagreement with this decision and appealed to the High Court of Justice of Catalonia, which considered that there was more than sufficient evidence to determine that there was a causal connection between his dismissal and the announcement of his wife’s second pregnancy. The Court is clear and determines a violation of fundamental rights, specifically Articles 14 and 39 of the Spanish Constitution, these being the right to gender equality in a direct way by connection with the rights to reconcile work and family life and the right to gender equality by reflex discrimination or by association.

The High Court of Justice of Catalonia understands that the recent reincorporation of the worker from his paternity leave together with the communication of his wife’s second pregnancy and his dismissal for objective reasons, maintain a close connection with the fundamental right to gender equality and non-discrimination, placing the worker in a position of exercising conciliatory rights, which directly affects the operation of the company.

In this sense, the Court also admits that there is clear reflex discrimination or discrimination by association when we are faced with “a person who is treated less favorably because of his or her relationship or association with another person who possesses one of the protected traits or characteristics, even though that characteristic is not present in the person alleging the discriminatory treatment”. In other words, discrimination cannot be limited only to persons in whom the protected personal condition is present (in this case, pregnancy), but the protection must also be applicable to anyone who suffers unfavorable treatment for exactly the same reason.

All this has led the High Court of Justice of Catalonia to declare the dismissal of the worker null and void, setting a compensation of €7,000 for moral damages, the company having failed to justify in an objective and sufficient manner its decision to proceed with the termination of the worker’s contract, and without having accredited that such decision is totally unrelated to the violation of the fundamental rights alleged.

This ruling opens a new possible cause for nullity of the dismissal, as a direct consequence of the continuous regulatory changes that tend to facilitate the reconciliation of work and family life between workers and companies.

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