Under Spanish law, the dismissal of a pregnant employee will generally be found to be invalid, with the consequent obligation on the employer to reinstate the employee to her job and to pay her the wages that would have been due to her from the dismissal until the date of the judgment. In a case in November this year, the Supreme Court held that the termination of a contract of a pregnant worker during the probationary period will be protected from a declaration of invalidity on the grounds of pregnancy as long as the employer knew about the pregnancy at the time the contract was entered into.

In a case considered by the Galician Supreme Court, a woman signed a fixed-term contract (which included a three month probationary period) as a commercial assistant arranging new gas installation contracts. At the time of her recruitment, she informed her employer of her pregnancy. During the period that she worked for the company, she made 700 visits during which she only obtained four contracts. The company told her that her employment contract was being terminated because she had not passed the probationary period. When the employee subsequently brought a claim in the Social Court, the Court declared the dismissal to be invalid because she was pregnant.

Article 55.5B of the Workers’ Statute states that “the dismissal of pregnant employees will be invalid […] unless it is held that the dismissal was fair and for reasons unrelated to the pregnancy”.

The company appealed to the Supreme Court arguing that at the time of hiring the employee it knew that she was pregnant and as that had not been a barrier to her recruitment, there was no evidence of discrimination requiring the company to justify why the plaintiff did not pass her probationary period.

The Supreme Court’s judgment said that “it [the termination] is not a business decision taken under the guise of dismissal, therefore it would be necessary to establish to what extent the underlying reason for the termination for failing to pass the probationary period was actually driven by her pregnancy”. The judgment also states that as the company knew about the pregnancy at the time of hiring her, there is no connection between that and the termination, though it is possible to argue that this is a little simplistic – there would after all be many fewer claims based on race or sex if it was a defence for the employer to have known of the relevant characteristics at the point of hire!

In relation to the probationary period, the Supreme Court reiterated that “it is a mechanism that allows either party involved in the contract to unilaterally terminate it, at its sole and exclusive discretion, without needing to comply with any special requirements. It is sufficient that the probationary period is current and that the employer or employee terminates the employment relationship, without either party having to give any special kind of communication, nor specify the reasons for the termination - because the motivation for it is purely subjective to the party taking the action”. The Court went on to say this will be the case unless the termination is motivated by discriminatory reasons in violation of Article 14 of the Constitution, i.e. the right not to be discriminated against by reasons of sex or that violates any fundamental right.

The judgment concludes that although it was not necessary for the company to specify a reason for ending the probation period, its actions were in the event entirely justified by the unsatisfactory performance of the employee in only achieving four contracts in 700 visits.