The TSJ of Madrid declares the dismissal null and void, considering that the company should have specified the reasons, although it was unaware of the worker's pregnancy.
The appeal 187/2024, filed against the ruling handed down by the Social Court No. 19 of Madrid in proceedings 647/2023, dated November 10, 2023, regarding dismissal, is resolved.
Ms. Sandra provided services for the defendant company from May 8, 2023, with the category of teleoperator and under a temporary part-time contract due to production circumstances, with a working day of 30 hours per week and a scheduled duration until July 14, 2023. The collective agreement applicable to the contract was that of the Contact Center.
Prior to her hiring, between April 24 and May 5, 2023, the worker completed a paid training period that was carried out remotely and with the use of her own equipment. During this training, Ms. Sandra did not answer real calls or have access to the company's applications or systems.
On May 26, 2023, the company notified the worker of the termination of her contract for not passing the trial period, a measure that also affected five more workers. On the date of termination, the worker was pregnant, although neither the company nor the rest of the company was aware of this, a fact that was not the subject of controversy in the procedure.
The lower court ruling dismissed the claim filed by Ms. Sandra, in which she requested the declaration of nullity of her dismissal or, alternatively, its inadmissibility, together with the recognition of her seniority, the existence of an indefinite employment relationship and a claim for an amount for violation of fundamental rights.
Ms. Sandra filed an appeal and the company contested the appeal. alleging its inadmissibility due to non-compliance with the formal requirements provided for in the Law Regulating Social Jurisdiction (LRJS). Specifically, it maintained that the appeal did not correctly substantiate the regulatory violation, omitted the review of the proven facts and did not precisely identify the substantive regulations allegedly violated. Likewise, he argued that the lack of express reference to article 80 of the Collective Agreement prevented an adequate legal basis.
The Superior Court of Justice of Madrid rejected the company's challenge, considering that there were no formal defects that justified the inadmissibility of the appeal. He argued that, being based on article 193 c) of the LRJS, the appeal did not question the factual relationship established in the lower court ruling, but rather its legal basis. Given that the review of proven facts is not a mandatory requirement to allege regulatory infringement, the appeal had to be admitted and analyzed on its merits.
In its foundation,The appeal argued that the mandatory training period should be considered actual working time according to article 1 of the ET, as it involves the provision of services of a personal, paid and dependent nature. However, the Court rejected this argument when it understood that, in accordance with the applicable collective agreement, the training ended when the worker began to answer calls independently. In this case, the worker only made calls under supervision, within the training period, without this constituting an effective provision of services under the organizational structure and management of the company.
Consequently, the Court rejected the first reason for the appeal, confirming that during said period there was no effective employment relationship in the terms required by labor regulations.
The appeal also denounces the violation of article 14 of the ET, modified by Royal Decree-Law 6/2019, which establishes the nullity of business withdrawal during a trial period when it affects a pregnant worker.. The violation of article 53.4.b) of the ET is also alleged, which contemplates the objective nullity of the dismissal in these cases, regardless of whether the company knew of the pregnancy.It is based on the jurisprudence of the Supreme Court and on Directive 92/85/EEC, which requires written justification for any dismissal during pregnancy.
The TSJ confirms its criteria in STSJ Madrid 3010/2023, which maintains that the nullity of dismissal during a trial period is automatic since the 2019 reform.reaffirms that the company did not justify the termination of the contract or prove the existence of an objective cause for the same,limiting itself to alleging the failure to pass the trial period, which violates the reinforced protection of the pregnant worker.
The Court confirms the seniority of the worker since May 8, 2023, so the termination on May 26 of that same year occurred within the one-month trial period stipulated in the contract.. However, despite the fact that the termination occurred within the trial period, it is noted that the worker was pregnant at that time. The company only alleged the failure to pass the trial period to justify the dismissal, without providing any additional evidence to explain the reasons for the dismissal, not even in relation to the other dismissed workers.
Therefore,the dismissal is considered null and void in accordance with article 14.2 of the Workers' Statute, which protects pregnant workers. Given that the worker's temporary contract ended on July 14, 2023 and its temporary nature is not questioned, the consequence of the nullity is the sentence to the company to pay the processing salaries from the dismissal (May 26) until the end of the contract (July 14, 2023), since reinstatement is not possible due to the temporary nature of the contract.
The worker requested compensation for moral damages due to the nullity of her dismissal due to pregnancy, protected by article 53 of the Workers' Statute. However, the resource did not present sufficient arguments nor did it allege a violation of fundamental rights, which is what would justify the compensation.
The jurisprudence establishes that The annulment of dismissal due to pregnancy does not automatically imply moral damages, unless there is discrimination. In this case, it was not proven that the dismissal was discriminatory, since the company was unaware of the pregnancy at the time of the termination.
