Can you say goodbye to me just after maternity leave in this situation?
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Faced with the fear of being fired just after having a maternity leave, you should know that the law does not allow it.Although we are in a crisis situation by the Coronavirus, article 55.5.c) of the Statute of the Workers establishes this prohibition, indicating that it is not possiblethrough legal reform).
Thus, this article establishes the following:
"The dismissal in the following cases will also be void: (…) c) that of working people after having reimbursed at work at the end of the periods of suspension of the contract by birth, adoption, keep for adoption or foster care purposes, to whichArticle 45 refers.1.d), whenever no more than twelve months had elapsed since the date of birth, adoption, keeping it for adoption or foster care ".
It is important that you know that the protection established by law for the workers, after this situation, can be prolonged for those cases in which the worker requests an leave due to care of a child under three years or for a reduction in the day until theminor turned twelve years.
In short, protection can range from pregnancy until the child fulfills this age, if the worker requests a reduction in working hours.It is a very special protection for the worker, especially if we take into account that if it can be seen that the employer was waiting intentionally for the course of the deadline to fire it, provided that the company cannot prove that there is a reliable reason to fire it.
This special protection has been repeatedly indicated by the Courts of Justice, highlighting the judgment of the Superior Court of Justice of the Basque Country, of February 5 of last year 2019.
In the same, in addition to declaring void the dismissal of a worker after 8 days since his return on maternal leave, an essential criterion is set for the greater protection of the worker: the court established that the investment of the probative load to give must operate to giveProtection to the fundamental right to non -discrimination due to gender.
What does this mean?: That your boss will be, the entrepreneur, who will have to prove that the dismissal has been done for such a cause that, without the slightest doubt, allow to point out that it is not due to gender or sexist.
And what does this protection mean?.Essentially, this protection that is established determines that in case it is dismissed in a not adequate way, the consequence will be that the dismissal will be void.In a zero dismissal, the company will have to return to the worker and pay the processing wages, that is, the salaries that the worker would perceive from the moment of dismissal until the time of reincorporation.
In addition to this situation there are many others related to those that, without entering into specific cases and in general, the applicable law is the statute of workers.Specifically in article 55.5 Declares void the dismissal in cases where it also has to do with foster care and adoption.
The danger you have for a company to fire a woman in this situation is quite important, since if a sentence is achieved that declares the nullity of dismissal, the payment of late salaries from the date of dismissal that must pay will be an amount will be an amountimportant, which will vary depending on the case, in addition to the aforementioned reinstatement to the job prior to dismissal.
In addition, as it is very likely that neither the employer nor you as a worker you want to continue the employment relationship, you will have to add to this a possible compensation negotiated based on compensation for disproved dismissal.
*Manuel Martínez Mercado is a lawyer.
