Worker dismissal 8 days after 9 months from the birth of the daughter: Nullity

The TSJ Basque Country considers discriminatory, by reason of sex, the dismissal of a worker when it occurs 8 days after 9 months have elapsed since the birth of her daughter, due to the reversal of the burden of proof, when the employer does not contribute any of the reasonableness of its measure.

The facts of the referenced sentence are: the worker gave birth to her daughter on 04-18-2017, she rejoined on 31-8-2018 and on 18-1-2018 the worker’s daughter turned 9 months, protection time by objective nullity of the dismissals that take place in said period (ET art.55.5.c), and on 26-1-2018 the company notifies the worker of a letter of dismissal for voluntary and continued decline in their performance at work.

The Supreme Court considers that the reality differentiated from the gender circumstance, together with the assumption close to objective protection, must be accompanied by a halo of discrimination that in turn requires the reversal of the burden of proof towards the company to prove causality embodied in the letter of dismissal, in order to demonstrate its justification and reasonableness in the type of disciplinary causation invoked, having to strive for the search for data and considerations that demonstrate to the judge the ideation of the voluntary and continued decrease of the worker’s performance.

However, in the act of the trial the company only recognizes the inadmissibility and excuses itself in the probative difficulty or complication of a low performance in certain jobs, which are hardly measurable or quantifiable, finally assuming an inadmissibility that means devalving from any evidence . Therefore, the null dismissal is declared.

Likewise, the discrimination based on sex is reviewed, after the null dismissal qualification, additional compensation is granted for violation of fundamental rights and moral damages, referring to the violations and penalties of the LISOS. That, in the present case, it consists of € 10,000, when the minimum degree is applied by the economic weighting of the turnover, in a context of absence of any other aggravating circumstances.