What is the protection against dismissal for staff with working time adjustments after the entry into force of the Parity Law?
An alleged ‘error’ in the wording of the so-called Parity Law, which has recently come into force and which would affect the protection against dismissal of staff in certain situations, including those who have requested or enjoy an adaptation of the working day in order to exercise the right to reconcile work and family life, has become very popular in the media. In this article we will try to shed some light to clarify any doubts that may arise in this regard.
What is objective null dismissal
As is well known, a dismissal can be declared fair, unfair or null and void. However, the legislation offers reinforced protection to persons with specific personal circumstances, regulating what is known as ‘automatic’ or ‘objective’ nullity, which basically means that the dismissal of persons in certain cases can only be judicially declared fair (if it has been in accordance with the law) or null (if it has not been in accordance with the law), but not unfair.
Reminder: the difference between the consequences of the dismissal being declared unfair or null and void is that, in the case of unfair dismissal, the company chooses between the compensated termination of the employment relationship or the reinstatement with payment of wages for processing (in the event that the dismissed person has the protection of a legal representative of the workers or trade union delegate, he/she will have the possibility to choose); on the other hand, if the dismissal is declared null and void, the direct consequence will be reinstatement with payment of wages, and there is no option for termination with compensation.
There are several circumstances that shield the special protection of the objective, or automatic, nullity of dismissal, the best known case being that of pregnant women.
Which cases have lost the reinforced protection against dismissal with the new Parity Law?
Until the entry into force, on 22 August 2024, of Organic Law 2/2024, of 1 August, on equal representation and balanced presence of women and men (better known as the Parity Law), among these cases, there were two specifically excluded from the aforementioned protection:
- To have requested the leave referred to in article 37.3.b) of the Workers’ Statute, i.e. to have requested paid leave of five days due to serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest of the spouse, unmarried partner or relatives up to the second degree of consanguinity or affinity, including the unmarried partner’s blood relative, as well as any other person other than the above, who lives with the worker in the same home and who requires effective care of the worker.
- To have requested an adaptation of the working day or working time or the way in which the service is provided in order to make effective the right to reconcile work and family life, either to care for a child under the age of twelve, or for a spouse, unmarried partner or family members (up to the second degree of consanguinity) living together who are unable to look after themselves.
The Parity Law modifies, among others, Articles 53 and 55 of the Workers’ Statute, which are those that include the cases that are protected by objective nullity and, surprisingly, its new wording omits the aforementioned cases, which does not mean that these rights disappear, but it does mean that they are specially protected.
Will the dismissal of people who had enhanced protection due to the adaptation of working hours no longer be null and void?
The fact that the enhanced protection for persons in these situations has been taken away means that now, if the dismissal is deemed to be unlawful, it will a priori be declared unlawful, whereas until 21 August 2024 it would have been declared null and void.
In any case, this does not prevent the dismissal from being declared null and void, but the dismissal can be declared null and void if the worker provides sufficient evidence that the dismissal was discriminatory because the motive for the dismissal was retaliation for the request to exercise the right to reconcile work and family life, as long as the company is unable to disassociate the dismissal from the retaliation or discriminatory business decision.
Future predictions regarding protection from dismissal for staff with working time adjustments
Nobody knows how the matter will turn out, although, given the repercussions and the sense of the rules being implemented by the current government, everything points to the fact that these cases will soon be included again among those that enjoy the protection of objective nullity in the Workers’ Statute.
However, it will be necessary to wait and rely on continuous expert advice, as the ‘rules of the game’ of labour relations are affected by constant changes that require keeping abreast of them for optimal decision making.
Do you need advice? Access our area related to enhanced protection against dismissal: