The Superior Court of Xustiza of Galicia recognizes the right to unemployment benefits to a domestic employee

The Superior Court of Xustiza of Galicia (TSXG) has issued an unprecedented ruling in the country, recognizing the right of a domestic worker to receive contributory unemployment benefits, despite having requested them at a time when the law did not allow it..

The verdict of October 10, which was published this Monday by the TSXG, establishes that the plaintiff is entitled to unemployment benefit, even if the application was made before the entry into force of Royal Decree Law 16/2022, which improves the working and Social Security conditions of people employed in domestic service.

Application of the gender perspective

The superior court has validated this woman's right to receive unemployment, even though the law in force at the time of the request did not allow it, applying the gender perspective and the ruling of the Court of Justice of the European Union (CJEU). ) that caused the regulatory change in Spain.

The judges explain in the ruling that the Spanish law that excluded domestic employees from accessing unemployment benefits – in force at the time of the events – was “contrary to community regulations”.

Background of the case

In the ruling, it is recalled that the woman, who was affiliated with the Special System for Domestic Employees until August 4, 2022, had contributed 2,361 days to this regime and 2 days to the General Social Security Regime..

However, when she applied for her unemployment benefit, she was denied because it was not provided for domestic workers, since Royal Decree Law 16/2022 came into force on September 9, 2022.. The Social Chamber has highlighted that the group to which the plaintiff belongs is “strongly feminized, since women represent 95.53% of the total”.

The new regime and the gender perspective

The TSXG has indicated that the new regime, approved in Royal Decree Law 16/2022, resolves this discrimination for benefits produced after its entry into force, “leaving the eventual benefits caused by previously”.

Furthermore, it has stressed that the gender perspective in the interpretation of the regulations and the obligation derived from the jurisprudence of the CJEU “oblige the protection of workers integrated into this special system when the loss of their job has occurred prior to the new one.” regime and are unprotected”.

This means that, according to the ruling, the TSXG judges recognize the right of the affected person to unemployment benefit, “despite the fact that she has not contributed for it – due to the legal, discriminatory impossibility-“.

Interpretation of the regulations

The ruling adds that “it is necessary to take into account, on the one hand, that the Spanish regulations that excluded contributions (and unemployment) for workers integrated into the Special System for Domestic Employees are contrary to community law because they are discriminatory, and “That this situation has not been resolved with the reform carried out by Royal Decree Law 16/22 because it does not resolve the problem of the possible previous beneficiaries, but only of the causative events after its entry into force.”.

The TSXG has also indicated that “the interpretation of the regulations must be produced in the most favorable way to the discriminated group (that of the people integrated into that special system), with a gender perspective, because the feminine bias of its members is indisputable. almost entirely; and, furthermore, in the application and interpretation of the rules, judges have an obligation to do so with a gender perspective, by integrating a higher value of the legal system.”.

The ruling, a pioneer in Spain, is not final, since an appeal can be filed against it.