The High Court of Justice of the European Union ruled on 24 February 2022 that domestic workers who are registered with the Social Security will be entitled to unemployment benefits in Spain.
Be aware that the protection granted by the special social security system for domestic workers under Spanish law does not include protection against unemployment.
A domestic worker who is the employee of a natural person has been registered with that special scheme since January 2011. In November 2019, she applied to the Tesorería General de la Seguridad Social (General Social Security Fund, Spain, ‘the TGSS’) to pay contributions in respect of unemployment protection in order to acquire the right to those benefits. The TGSS rejected that application on the grounds that the Spanish legislation expressly prevented her from contributing to that scheme in order to obtain protection from unemployment.
The worker then appealed to the Juzgado de lo Contencioso-Administrativo No 2 de Vigo (Administrative Court No 2, Vigo, Spain) claiming in essence that the national legislation places domestic workers in a situation of social distress when their employment ends for reasons which are not attributable to themselves. That prevents them from obtaining not only unemployment benefit but also the other types of social assistance which are dependent on entitlement to unemployment benefit having come to an end.
In that context, the Spanish court emphasizes that the category of workers in question consists almost exclusively of women, which is why it asks the Court to interpret the directive on equality in matters of social security, 1 in order to determine whether there is indirect discrimination on grounds of sex, which is prohibited by that directive.
In today’s judgment, the Court holds that the directive on equality in matters of social security precludes a national provision which excludes unemployment benefit from the social security benefits granted to domestic workers by a statutory social security scheme, since that provision places female workers at a particular disadvantage compared with male workers and is not justified by objective factors unrelated to any discrimination on grounds of sex.
Consequently, the national legislation places female workers at a particular disadvantage and thus gives rise to indirect discrimination on grounds of sex, which is contrary to the directive unless it reflects a legitimate social policy objective and is suitable and necessary for achieving that objective.
The Court notes that the category of workers excluded from protection against unemployment has not been meaningfully distinguished from other categories of workers which are not excluded. It points out that those other categories of workers, in respect of which the employment relationship takes place in the homes of non-professional employers or in respect of which the field of work has the same specific characteristics in terms of levels of employment, skills and remuneration as that of domestic workers, pose similar risks in terms of reduced levels of employment, social security fraud and recourse to illegal work, but are all covered by unemployment protection. In addition, the Court adds that registration in the Special Scheme for Domestic Workers confers entitlement, in principle, to all the benefits granted by the general Spanish social security system except unemployment benefit. That scheme covers, inter alia, risks related to work accidents and occupational diseases. There is also a lack of consistency in that respect, in so far as these other benefits present the same risks of social security fraud as unemployment benefit.
Finally, the Court considers that the Spanish legislation appears to go beyond what is necessary to achieve those objectives. Exclusion from unemployment protection entails the impossibility of obtaining other social security benefits to which domestic workers would be entitled and the granting of which is conditional on the extinction of the right to unemployment benefit. That exclusion would thus lead to a greater lack of social protection resulting in a situation of social distress.
Finally, on 6 September 2022, the Spanish government approves the unemployment benefit for domestic workers.
Source: Press release – Court of Justice