Within the ever-growing list of causes of discrimination referred to employment relationships, we cannot forget that kinship with persons belonging to or related to the company may also be a cause of nullity of dismissal, but it does not cause such nullity automatically.
Article 17.1 of the Workers’ Statute (WS) considers null and void unilateral decisions of the company that give rise, among others, to discrimination situations, direct or indirect, based on the grounds of “ties of kinship with persons belonging to or related to the company”.
In application of this article, a dismissal of an employee having such kinship ties could become null and void if the dismissal is a consequence of such ties and involves discrimination. For this reason, it is appropriate to analyze (i) whether the employee to be dismissed has a family relationship in the terms defined by the aforementioned article and (ii) whether the dismissal is a case of discrimination due to the type of relationship protected.
In general, the judicial doctrine has considered as “persons belonging to or related to the company” to be any employee of the company or any person of its management body; and it considers that a dismissal is discriminatory when the situation of kinship is present and the company has not been able to prove that the dismissal has been based on objective causes and of sufficient entity to dispel any doubt of discrimination due to the family relationship under analysis.
However, the kinship in question does not automatically determine the nullity of the dismissal, and there are several examples of cases in which the courts and tribunals have ruled out the nullity of the dismissal of an employee who had a kinship relationship with persons related to the company:
- The dismissal of an employee who was the son of one of the company’s partners, dismissal which the company recognized in the dismissal letter itself as unfair, was declared as such, rather than null and void. It was questioned whether the dismissal should be classified as null and void, and derived from a potential enmity between the partners, but the court understood that it had not been proved that such enmity existed, but only discrepancies between them, so it classified the dismissal as unfair and not null and void. Judgment of the Superior Court of Justice of Catalonia, of May 17, 2010.
- The employee provided services for a foundation dedicated to residential care and was dismissed for unjustified absences from work, which were proven at the trial. The employee was the wife of a member of the board of trustees of the foundation who had been asked to resign from his position only a few months before his wife’s dismissal and was also related to the brother of the board member who was dismissed on the same day as the appellant. The court concluded that these relationships could only constitute an indicative scenario of the existence of the unlawful cause of discrimination mentioned in article 17.1 of the WS, but this can be undermined when the existence of a lawful cause of disciplinary dismissal is proven and, in addition, there was no evidence in the case at hand that, by comparison with other employees or for any other circumstance, the company would not have performed the dismissal for the disciplinary cause of unjustified absences, should the relationship of kinship had not existed. However, the court ended up declaring the dismissal as unjustified due to a formal defect in its execution. Judgement of the Superior Court of Justice of Castilla y León, of April 1, 2019.
- The relationship of kinship of the dismissed employee with the previous owner of the commercial registry (they were first cousins) in which he rendered services does not entail the nullity of the dismissal made by the subsequent owner of the registry shortly after his incorporation. The court resolves that there was no discriminatory treatment for being a first cousin of the previous registrar since other employees were also related to him and only the one who committed very serious labor infringements was dismissed, classifying the dismissal to be fair. Judgment of the High Court of Justice of the Canary Islands, of December 21, 2010.
In the context of family businesses, it is more complicated for a dismissal to be declared discriminatory due to kinship, since it is common for the family status of the employee to have influenced his or her hiring and even his or her working conditions. Therefore, in these cases, the judicial doctrine establishes that if in a family company someone is hired precisely because of his or her family relationship, it is contrary to the purpose of article 17 of the WS that he or she ends up shielded from sanctions for employment-related breaches. As an example, in the Judgment of the High Court of Justice of Galicia, of December 7, 2022, the court upheld the unfairness of a dismissal of an employee on the grounds that the company had proved that it had legitimate disciplinary grounds for dismissal, although it had opted to recognize the unfairness of the dismissal.
In short, if there are objective data that disconnect the dismissal from the kinship ties of the dismissed person protected by article 17.1 of the WS, the dismissal should not be null. Hence the importance of the prior analysis of the particular situation of the employee before making the decision to dismiss in these cases.
