The Supreme Court determines in the ruling of February 14, 2022, attached to this publication, that the lack of written communication of the end of a domestic worker's contract converts the leave into the  Social security in a tacit dismissal and not in a resignation of the worker. To give you background, this ruling deals with the employment relationship between a domestic employee and her employers.

The controversy between them begins the day both parties argue and the housekeeper leaves the home. That same day, the employers file their leave with Social Security, alleging voluntary leave on the part of the worker. The issue being debated in this litigation is whether the worker went on leave as a result of abandoning her job, or whether it was a tacit dismissal by decision of the employer.

What is a tacit dismissal?

It is the one that is carried out without express communication to the  worker, by the will of the  businessman to terminate the contract. In this case specifically, the Court considers that a tacit dismissal has occurred because the employers could not prove the resignation of the employee, as they alleged in their defense.

Royal Decree 1620/2011 is responsible for regulating the special employment relationship of family home service, in its article 11.4 it says that it will be presumed that the employer has chosen to dismiss the employee.  worker  and not by desistance, with the application of the consequences established in the  rule in the event that the communication of the cessation has not been made in writing in a clear and unequivocal manner, an essential condition under article 11.3, or when it is not made available to the  worker  the compensation established simultaneously with the communication.

In this ruling, the Judge highlights that following the Jurisprudence established by the Supreme Court requires the decisive and conscious will of the  businessman  so that in turn  worker  can react in the terms permitted by the applicable legal framework, challenging the employer's decision within a period of 20 business days from when it is notified, and in this way avoid situations of legal uncertainty. In this ruling it must be considered that the casuistry of this matter reflects a clear tacit dismissal since it is carried out without express communication from the employer to the employee of his desire to terminate the contract.

FAILED:  Therefore, when the court determines that we are facing a tacit dismissal, the termination of the employment relationship must be declared inadmissible.