In a 11 January 2022 judgment, the Supreme Court had to determine whether the dismissal of a household employee should be considered null and void as her employer was unaware that she was pregnant at the time.

In the case at hand, the employee received the following notice from her employer while on sick leave: "I hereby inform you that as of 04/08/17 your employment with Ms. Rebeca is terminated. You will be notified as to when and where you can sign the settlement agreement".

A meeting took place on 28 July 2017 for the employee to pick up her belongings. At the meeting, the employee informed her employer that she was pregnant.

Her employee finally handed her the termination notice on 4 August 2017, which was valid from that date onwards.

The employee filed a claim requesting the court to recognise the termination of her employment as a dismissal because it did not meet the necessary requirements to be considered as a contractual withdrawal, as regulated in the Royal Decree on Household Employees. Further, the employee asked that the termination be considered null and void as she was pregnant at the time.

The court of first instance's decision declared the employer's contractual withdrawal as unjustified and issued a compensation payment order awarded to the employee.

The employee appealed against this judgment, and the High Court of Justice of the Basque Country declared the dismissal of the employee null and void, ordering the employer to pay €5,564.69 in compensation to the employee, as well as accrued back pay and additional compensation due to the infringement of fundamental rights.

The employer then filed an appeal for the unification of doctrine, as she understood that the dismissal should be classified as unfair.

The employer's appeal stated that the reinforced protection against dismissal was not applicable as she was unaware of the employee's pregnancy when she sent the termination notice. This appeal was based on case law from the Constitutional Court and the Labour Division of the Supreme Court, which, for household employees, equates a withdrawal with an employment termination where the employee fails to pass their trial period. Therefore, article 55.5 of the Workers' Statute on the invalidity of dismissing pregnant employees would not be applicable in this case, even though her dismissal could be considered a discriminatory act. In other words, evidence of discrimination must be provided for the dismissal to be considered null and void.

In its judgment, the Supreme Court recalled that the Royal Decree on Household Employees set out the guarantee of gender equality in employment and introduced the invalidity of termination due to pregnancy to article 14.2 of the Workers' Statue. Before this change was made, such a guarantee was limited to cases of objective and disciplinary dismissal. Therefore, in the case of household employees, this rule has also been extended to employment termination as a result of withdrawal.

However, given that the withdrawal did not meet the requirements set out in article 11.3 of the Royal Decree on Household Employees, the termination was considered a dismissal because there was no clear and unequivocal evidence of the employer's will to terminate the employment, and the severance payment to the employee had not been made in cash.

Bearing in mind the above, and considering that the dismissal rules that are set out in the Workers' Statute could also apply to the special employment regime for household employees, the protection of pregnancy provided for in article 55.5 of the Workers' Statute was also applicable to the present case.

For all the above reasons, the Supreme Court upheld the ruling of the High Court, which declared the dismissal of a pregnant household employee as null and void.

For further information on this topic please contact Elena Esparza or María José Ramos at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] and [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at