For a dismissal not to be discriminatory, it suffices to show that there is a ground for dismissal that is entirely free from any type of discrimination. However, the burden of proof falls on the employer and the dismissal can be deemed null and void if this circumstance cannot be evidenced, even if the worker does not sufficiently evidence the actual link between the allegedly discriminatory element and the employer’s decision to dismiss.

This was the conclusion reached by the Labor Chamber of the Castilla La Mancha High Court in its judgment number 1129/2018, handed down on September 11, 2018, in a case of dismissal of a woman who considered that her employment contract had been terminated precisely because of her gender, based on the premise that labor inequality by reason of gender is a major social problem that must be treated with great sensitivity.

In the trial, certain figures were evidenced which proved, in principle, the existence of a certain degree of inequality in the hiring of female workers compared with male workers and a slight reduction in female personnel holding the position of warehouse manager (the dismissed worker’s position) in the past year. However, these figures were considered insufficient by the lower court to evidence the existence of the alleged discrimination and, therefore, the lower court judged the dismissal to be unjustified.

Nonetheless, the Castilla La Mancha High Court upheld the appeal filed by the worker and, in overturning the lower court judgment, declared the dismissal null and void on the following grounds:

  • First of all, the court attached special importance to the fact that the employer, even though it was a case of a dismissal in which the infringement of fundamental rights was alleged and even before knowing the outcome of the proceeding, decided to acknowledge the inappropriateness of its decision to dismiss during the trial itself and did not present any evidence intended to even try and prove the truth and seriousness of the alleged ground for disciplinary dismissal. The court considered that this conduct clearly showed that the dismissal was arbitrary and groundless.
  • While the court also considered that the figures evidenced by the dismissed worker were insufficient to evidence the existence of gender discrimination, it acknowledged the fact that the figures were not arbitrary and that they were actually proven in the trial.

Based on these circumstances, the court concluded that the employer’s decision actually concealed conduct that violated fundamental rights and it declared the dismissal null and void.

For the time being, this is a judicial ruling issued in a proceeding with very specific circumstances, but it should undoubtedly be borne in mind when it comes to assessing the necessary proof of grounds for dismissal in similar situations.

Tatiana Alejandra Moreno

Departamento Laboral de Garrigues