The Government should be swift in resolving the error made by the Ministry of Equality in the Parity Law which eliminates the automatic nullity of dismissal of workers who are under a five-day leave for the care of a family member or with an adaptation of the working day, in order to avoid an increase in litigation in the Social Courts in charge of settling labor issues. Thus, the union itself warns UGT which has demanded this Friday to the Executive to amend this situation, which they warn means an increase in the lack of protection of employees when it comes to take advantage of reconciliation measures at work.
Warns the union in a statement released Friday the “need to correct a significant error” in the recently approved Organic Law 3/2024 of August 1, on equal representation and balanced presence of women and men, known as Parity law. “This flaw directly affects working people who request or enjoy certain work permits related to the reconciliation of family and work life“, warns the organization.
As this media recently explained, the error was made by the cabinet led by the minister. Ana Redondo by modifying the articles 53 and 55 of the Workers’ Statute (ET) to include a new case of automatic nullity of dismissal: that of workers who are victims of sexual violence, in line with the equalization of rights to victims of gender violence in the face of this protection against dismissal for objective causes and against disciplinary dismissal.
However, during this process, two cases of automatic nullity that had been included since last year disappear from the wording, when in the approval of the law royal decree law 5/2023 transposed the European directive on the reconciliation of family and professional life of parents and caregivers. These assumptions incorporated then and that disappeared during the drafting of the law are the presumption of nullity of the dismissal (objective and disciplinary) of workers who have requested the leave of the article 37. 3. b) (five days’ leave for serious accident or illness, hospitalization or surgery without hospitalization that requires rest for family members and cohabitants) or are enjoying the same, as well as the adaptations to the working day of the article 34.8 of the ET (for reconciliation of family and work life). This modification has entered into force this Thursday, August 22, 2024.
UGT points out that the ‘express nullity’ supposes a special legal protection. “In this way, the dismissal is presumed null and void in the cases determined by law, without having to go through the judicial recognition of the existence of discrimination due to violation of fundamental rights. Thus, the company has the obligation to demonstrate the existence of a real, objective or disciplinary cause to destroy this consequence of nullity,” he explains about this loss of protection.
Principle of indemnity
However, the union also points out, in line with the interpretation of the legal experts in the labor field consulted by ABC, that this does not imply a direct means of dismissal but it does sow a greater possibility of litigation This may result in a bogging down of the judicial instances, as the final decision on the validity of the dismissals under the eliminated automatic nullity assumptions will pivot on the latter.
“It is necessary to take into account that, despite the error, and although the presumption of nullity has been eliminated in the aforementioned cases, the presumption of discrimination and violation of fundamental rights continues to exist in these cases, unless there is proof to the contrary, since these are conciliation rights. In this way, it is possible to defend before the Courts the nullity of this type of dismissal for violation of fundamental rights,” explains the union.
Despite this, the “special” and “reinforced” protection granted by the presumption of nullity against these dismissals is repealed until the error is corrected. “Thus, in the event of a claim against such dismissals, it is important to the allegation of discrimination and the provision of evidence of the same in order to obtain a procedural reversal of the burden of proof and that it is the company that has to prove the objective or disciplinary cause and the non-existence of discrimination, since, if it cannot prove this reality, the consequence of the dismissal would also be nullity”, points out the organization directed by Pepe Álvarez.
Thus, although UGT has already demanded that the Government “immediately rectify Organic Law 3/2024 and resolve this error immediately”, they also stress that all workers affected that, despite this legislative error, there is still a presumption of gender discrimination in cases of dismissal related to reconciliation rights. This means that, although the current law does not explicitly provide for the nullity of the dismissal, it is possible to and must be defended before the courts the nullity of any dismissal that violates these fundamental rights.
