There is a circumstantial external appearance from the moment in which the dismissal occurs and the worker informs the persons in charge of the company of his registration as an unmarried partner and subsequent paternity.
Judgment delivered by the Superior Court of Justice of Castilla y León, on 2 October 2017 [JUR\2017\260156]
The worker informs the company that in the following months he was going to be a father and that he intended to formalize, by registering in the register of unmarried partners, the union with his current partner.
Days later, the employer informs the employee of his dismissal based on disciplinary reasons, specifically by a continuous and voluntary decrease of the work performance, recognizing in said letter that the dismissal is unfair.
The High Court of Justice –that declares the dismissal, like the Labour Court, null and void– considers that marital status is one of the prohibited causes of discrimination. In this sense, it points out that the situation of extra-marital partners of the law, although traditionally integrated into the concept of single for the purposes of civil status, must be recognized –as already included in positive laws– a substantiality of its own. However, it should be remembered that in any case it is an option that belongs to the personal privacy of the worker over which the employer has no power or competence and, even less, is able to carry out any discrimination based on it.
Thus, to determine if the dismissal decision is due to the communication made by the worker, which constitutes a cause of unlawful discrimination, the Court affirms that there is an indicative from the external appearance since the dismissal occurs shortly after the worker informs the company management of this situation and informs about the rights associated with it. On the contrary, there is no justification of the dismissal decision from such intention, to the point that the dismissal letter does not express concrete facts that constituted the stated labor fault and it even recognizes the inadmissibility of the dismissal.
In conclusion, the Court declares the dismissal null and void because it considers that the grounds for it are discriminatory