The Court rules out the automatic nullity of article 55.5 ET and applies the legal exception, as there is an objective cause. The company was not aware of the pregnancy.

The Social Chamber of the Superior Court of Justice of Catalonia resolves the appeal no. 5782/2024 filed by the plaintiff against the ruling handed down on May 15, 2024 by the Social Court no. 13 of Barcelona, ​​in a dismissal procedure and claim for damages for violation of fundamental rights.

The employment relationship began on November 8, 2021 after passing a telephone selection process. She was hired as a teleoperator for a client's teleworking campaign. Received distance training. From the beginning he had technical difficulties that prevented him from accessing the work system, a situation that he reported by email on November 15, 2021, indicating that he had incidents with the registration of working hours and it appeared as if he had not worked. The company, the next day, recognized that there was a problem with its user, committing to solve it immediately and requesting additional technical data to be able to move forward with sending the access codes.

On December 14, 2021, the worker complained by email about errors in her payroll, reporting the absence of the nighttime and holiday bonus. The company admitted not having paid the nightly bonus, undertaking to regularize it, and clarified that it was not paid holidays because it had not been worked.

The technical problems were resolved as of December 1, 2021, but the worker never managed to connect to the system or answer calls throughout the duration of the employment relationship (11/08/2021 to 01/27/2022). On January 27, 2022, she was disciplinaryly dismissed for voluntary and continued decline in performance (average performance 0.00 versus the target of 5.33).

The Labor Court dismissed the claim and the worker appealed, alleging:

• Motivation defects in the dismissal letter. They did not specify either the performance measurement periods or the comparison parameters.
• Recognition by the company of technical problems beyond its control. It was not appropriate to estimate a voluntary decrease in performance.
• Violation of the jurisprudence of the Supreme Court (STS no. 40 of 01/25/1988), which requires, for the admissibility of dismissal for poor performance, voluntariness, objective seriousness, continuity and objective elements of comparison to be present.
• Nullity of the dismissal due to being pregnant on the date of dismissal (art. 55.5 b) ET).
• Modification of a proven fact and the incorporation of emails from the month of December 2021.

The company opposed the appeal, claiming that:

• The zero performance was proven with the documentary that demonstrated that the worker had never connected.
• The technical problems were resolved on December 1, 2021 and despite this, the inactivity continued.
• A comparison term was not necessary because the worker never provided services.
• The dismissal letter was clear and sufficient. The annulment was not appropriate since the company was unaware of the worker's pregnancy status, as had been proven in the documentary and testimony, so the dismissal was based on objective causes unrelated to said circumstance.

What was the decision of the Superior Court of Justice of Catalonia?

Regarding poor performance, the Court confirms that there were technical problems during the month of November 2021, independent of the will of the worker, but that these were resolved as of December 1, and since then the total absence of connection and provision of services had been proven.. Such inactivity is considered voluntary and continuous, of sufficient magnitude to justify disciplinary dismissal. due to decreased performance, in application of article 54.2 e) of the Workers' Statute and article 67.12 of the Contact Center State Collective Agreement.

Regarding pregnancy, it is recognized that the worker was pregnant at the time of dismissal. It is also clear that the company was unaware of this circumstance.The Chamber recalls that the automatic nullity of art. 55.5 b) ET is an exception if the dismissal is appropriate for reasons unrelated to the pregnancy; and "the doctrine of the Supreme Court when it states that the dismissals of workers (women) that take place during the period between the date of onset of pregnancy and the beginning of the maternity suspension period are considered null and void, unless the dismissal is declared for reasons other than pregnancy. In this case, when the lack of activity is proven as an objective and sufficient cause, the dismissal cannot be classified as null, but from originating.

The ruling highlights that This is not a case of insufficient or comparatively low performance, but rather the total absence of labor provision throughout the duration of the contract, which constitutes a serious and culpable breach of contractual obligations. The fact that the company recognized errors in the payroll or initial technical incidents does not detract from the fact that, once resolved, the worker continued without carrying out any activity.

The Chamber, in its analysis, admits the incorporation of the December 2021 emails as a new proven fact, given that the parties do not question their existence or content. However, it warns that such emails, relating to errors in the payroll, do not alter the fundamental conclusion about the absolute lack of work activity.

The Chamber concludes that the extinction decision was legitimate, proportional and in accordance with the law., confirming the assessment of the trial judge and the admissibility of the disciplinary dismissal. The appeal is dismissed. An appeal is possible for the unification of doctrine before the Supreme Court.