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Fearing that you will be fired right after going on maternity leave, You should know that the law does not allow it. Although we are in a crisis situation due to the coronavirus, the article 55.5.c) of the Workers’ Statute establishes this prohibition, indicating that it is not possible to proceed with the termination of the employment contract until the more than twelve months from the date of birthadoption or fostering of the child (previously it was 9 months; extended through legal reform).

Thus, this article establishes the following:

“The dismissal will also be void in the following cases: (…) c) That of the workers after having returned to work at the end of the contract suspension periods due to birthadoption, custody for the purposes of adoption or fostering, referred to in article 45.1.d), provided that no more than twelve months had passed from the date of birth, adoption, custody for the purposes of adoption or foster care”.

It is important that you know that The protection that the law establishes for workers, after this situation, can be extended for those cases in which the worker requests a leave of absence to care for a child under three years of age or for a reduction in working hours until the child turns twelve.

Definitely, protection can go from the moment of pregnancy until the minor reaches that age, if the worker requests a reduction in working hours. This is a very special protection for the worker, especially if we take into account that it is apparent that the employer intentionally waited until the deadline had passed to fire her, as long as the company cannot prove that there is reliable reason to fire her.

This special protection has been repeatedly pointed out by the courts of justice, highlighting the Judgment of the Superior Court of Justice of the Basque Countrydated February 5 of last year, 2019.

In it, in addition to declare null and void the dismissal of a worker after 8 days Since her reinstatement due to maternity leave, an essential criterion has been established for greater protection of the worker: The Court established that the reversal of the burden of proof must operate to provide protection to the fundamental right to non-discrimination based on gender.

What does this mean?: that it will be your boss, the employer, who will have to prove that the dismissal was carried out for such reason that, without the slightest doubt, allows us to point out that it is not due to gender or sexism.

And what does this protection mean? Essentially, this protection that is established determines that in the event of inappropriate dismissal, the consequence will be that the dismissal will be void. In a null dismissal, the company will have to reinstate the worker and pay the processing wages, that is, the wages that the worker would receive from the moment of dismissal until the moment of reinstatement.

In addition to this situation There are many others related to which, without going into specific cases and in a general way, the applicable law is the Workers’ Statute.. Specifically, article 55.5 declares dismissal null and void in cases in which it also has to do with foster care and adoption.

The danger that dismissing a woman in this situation has for a company is quite important, since if a ruling is obtained that declares the dismissal null and void, the payment of back wages from the date of dismissal that must be paid will be a significant amount.which will vary depending on the case, in addition to the aforementioned reinstatement to the job prior to dismissal.

Furthermore, since it is very likely that neither the employer nor you as a worker will want to continue the employment relationship, you will have to add to this a possible negotiated compensation based on compensation for unfair dismissal.

*Manuel Martínez Mercado is a lawyer.

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