Lunes, 03 Octubre 2022

The new dismissal regime in the Family Home Service in Spain

VolverThe Royal Decree Law 16/2022 in force since 9 September last is a consequence of Spain's ratification of ILO Convention 189 and the applicability of the Judgment of the High Court of Justice of the European Union of 24 February 2022 (C389/20), and introduces important new features in the legal regime of this Special Labour Regime, such as: Unemployment protection (and consequent increase in the contribution of 6.05%, 5% payable by the employer with an 80% bonus, and 1.05% payable by the worker), FOGASA protection (and consequent increase in the contribution of 0.2% payable by the employer) and protection in terms of Occupational Risk Prevention (which until now was not provided for in the previous legislation).

On the other hand, the new legislation introduces a new dismissal regime, the main novelty of which is the elimination of "employer withdrawal" as a termination at the sole will of the employer without cause and payment of compensation.

Therefore, as of 9 September 2022, the employment relationship may be terminated for the general reasons established in the Workers' Statute, applying the common regulations "except insofar as it is incompatible with the peculiarities derived from the special nature of this relationship".

The new regime is regulated in Article 11 of Royal Decree 1620/2011 on Domestic Workers, and the contract may be terminated for any of the following justified causes;

a) Decrease in the family unit's income or increase in expenses due to a supervening circumstance.

b) Substantial modification of the needs of the family unit that justify the person working in the household being dispensed with.

c) Behaviour of the worker that reasonably and proportionately justifies the employer's loss of confidence.

The decision to terminate the contract shall be communicated in writing to the domestic worker, stating clearly and unequivocally the employer's intention to terminate the employment relationship and the reason for such decision.

Simultaneously with the notice of termination, the employer shall make available a severance payment of twelve days per year of service with a limit of six monthly payments. In the event that the contract exceeds one year, twenty days' notice shall be given, and in other cases, seven days' notice shall be given.

If the requirements relating to the written form of the notice of termination or the provision of compensation are not complied with, "it will be presumed that the employer has opted for the application of the termination regime of dismissal regulated in the Workers' Statute".

As labour lawyers, we would like to point out that the new wording of article 11 of Royal Decree 1620/2011 eliminates the regulation of disciplinary dismissal and its classification as unfair with a compensation of 20 days per year of service with a maximum of 6 monthly payments, which in our opinion is a legal loophole with the interest of resorting to the supplementary legislation established in the Workers' Statute (new article 11.1 RD 1620/2011). In our legal opinion, and pending future judicial interpretations of this regulation, the amount of unfair dismissal of workers employed in a family home has been raised or equated to the amount set for the common employment relationship of 33 days per year of service with a maximum of 24 monthly payments.

In addition, we consider that the biggest legal problem will arise in relation to null and void dismissal and its effects, as the new regulation is equally silent.

In these cases, it has been accepted that the declaration of null and void dismissal includes an order to pay wages from the date of dismissal until the declaration of nullity of the dismissal (e.g., the Supreme Court's ruling of 11 November 2007). Judgment of the Supreme Court of 11 January 2022, in the case of a pregnant worker), although there is no clear line of jurisprudence in relation to the effects of the mandatory reinstatement established in the common legislation of supplementary application.

Most of the rulings issued by the High Courts of Justice consider that the reinstatement of workers in this regime is not appropriate, admitting that although there is a violation of the fundamental right of the worker, the fundamental right to privacy and inviolability of the employer's home must also be weighed up, and not condemning reinstatement (see STS Justicia Madrid of 24/11/2008).

However, recently the High Court of Justice of Andalusia (Judgment 14 July 2022) has ordered compulsory reinstatement in a case of null dismissal of a domestic worker, so this doubt or legal loophole not corrected in the new regulation will continue to exist, at least until the Supreme Court does not unify doctrine in this regard.

Therefore, from the Labour Law Department of BELZUZ ABOGADOS, S.L.P., given the significant legal and economic risks that a family may face when a dismissal or termination of this special employment relationship occurs, we recommend that the necessary legal advice is obtained prior to the termination.

Pedro-Gomez-Rivera  Pedro Gómez Rivera

Director del Departamento de Derecho laboral | Madrid (España)

 

Belzuz Abogados SLP

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