The dismissal of the worker who benefits from the reduction of working hours due to legal guardianship is declared null and void because it is an objective and automatic guarantee that grants protection regardless of any need to prove the discriminatory aim.

Judgment delivered by the Supreme Court on 11 January 2018 [JUR\2018\22663]

The facts debated in the current case relate to a worker who requested a reduction of working hours due to child care and that, although the company did not expressly answer said request, the reduction was carried out a month after the request. Moreover, just one year and seven months after the request of reduction of working hours, he was dismissed because of a corporate restructuring.

In view of the above facts an appeal for the unification of doctrine was filed against the ruling of the High Court of Justice that declared the dismissal of the worker with reduced working hours due to the legal guardianship of his daughter as unfair. The court indicated that the nullity of the dismissal did not come from the fact that the dismissal was executed a year and seven months after the request for a reduction in the working day, which reveals that the dismissal was not a retaliation for the employee’s request.

In fact, the controversial issue focuses on determining whether the dismissal of a worker with reduced working hours due to the legal guardianship of his daughter must be declared unfair or null and void. In this regard, the Supreme Court’s doctrine establishes that protection in certain cases, such as the worker’s leave, would be rendered ineffective if it did not involve the objective nullity of the behaviors that adversely affect it.

For the aforementioned court, the effect of the applicable precept –nullity of dismissal due to particularly wellprotected biological and family circumstances– constitutes an objective nullity, which differs from nullity due to discrimination regardless of whether there are indications of discriminatory treatment or, even, whether or not there is a discriminatory aim.

The essential purpose of the norm is to fight discriminatory dismissals. This ultimate purpose does not imply that the instrument chosen by the legislator to be articulated may not consist of an objective and automatic guarantee which grants protection regardless of any need to prove the discriminatory aim, as in the present case.

Otherwise, the protection sought would be rendered ineffective if the behaviors that violate said norm did not entail an objective nullity.

In view of the above, the dismissal of a worker with reduced working hours for legal guardianship is declared null and void even if said reduction was requested a year and seven months before the dismissal.