The TSXG, overturning a decision from the court of A Coruña, defends the “most favorable interpretation for the discriminated group” and has a gender perspective
The Social Chamber of the Superior Court of Xustiza de Galicia (TSXG) issued a pioneering judgment in Spain in which it declared the right of a domestic employee to receive contributory unemployment benefits before the law began to be implemented. which allows it –Royal Decree Law 16/2022 for improving the working conditions of domestic workers–.
This judgment admitted the appeal of the plaintiff and revoked the first instance judgment issued by the Social Court number 6 of A Coruña. The Galician high court understood that this woman was entitled to benefits, even though the legislation in force at the time of the request did not allow it, due to the application of the gender perspective and the decision of the Court of Justice in the European Union (CJEU) which caused the change in regulation in Spain. The sentence is not final, as an appeal can be filed against it.
The magistrates explained in the resolution that the Spanish regulations that exclude domestic workers from accessing unemployment benefits – which were implemented at the time of the events – were “contrary to community regulations.” In the resolution, they remember that this person, who is with the Special System for Domestic Employees until August 4, 2022, has contributed 2,361 days to this regime and two days to the General Social Security Regime. When he applied for his unemployment benefit, he was denied because it was not provided for domestic workers, since the decree was implemented on September 9, 2022.
The Social Chamber says that the group to which the plaintiff belongs is “strongly feminine since women represent 95.53% of the total.” The TSXG emphasized that the new regime, approved by Royal Decree Law 16/2022, resolves this discrimination for benefits made after its inception, “leaving any benefits previously made in the same and the same situation as before.” “.
In addition, it emphasizes that the perspective of gender in the interpretation of the regulations and the obligation of the jurisprudence of the CJEU “obliges the protection of workers integrated into this special system if the loss of their job occurred before the new- regime and no protection.” All this, according to the ruling, led the judges of the TSXG to recognize the right of the affected person to unemployment benefits “even though he did not contribute to them (due to legal, discrimination impossible).”
“It is necessary to consider, on the one hand, that the Spanish regulations that do not include contributions (and unemployment) for workers included in the Special System for Domestic Employees are against community law because they discrimination and that situation is what has not been solved by the reform made by Royal Decree-Law 16/22 because it does not solve the problem of possible previous beneficiaries, but of the causal events after it enters into force, “said the TSXG.
The court concluded its arguments that: “The interpretation of the regulations must be produced most favorably to the discriminatory group (that of people included in the special system), with a gender perspective, because of the feminine bias of its members. indisputable. almost in general; moreover, in applying and interpreting the rules, the judges must do so from a gender perspective, by combining the higher value of the legal system.”