Can a dismissal be discriminatory based on gender and, therefore, null and void, even though the employee that has been dismissed does not form part of a legally protected group?

The conclusion reached by the Labor Chamber of the High Court of Justice of Galicia, in its judgment of March 4, 2021, was that it could. The judgment confirmed the decision handed down by the trial court and declared null and void the dismissal of an employee who several days before the decision to end his contract, had informed the company that his partner was pregnant and that he intended to accompany her on certain visits to the doctor.

The court held that both the company’s prior knowledge that the employee’s partner was pregnant and the notice provided by the employee in this regard, were sufficient prima facie indications of the breach of the right to freedom from gender discrimination in the form of discrimination by association.

Given the very short space of time that had elapsed by between such indications and the employee’s dismissal, the court considered that in this case the company did not provide an objective and reasonable justification for the decision to end his contract which would have released it from the accusation of discrimination.

As a result, the judgment concluded that the dismissal was null and void due to the breach of the prohibition on discrimination under article 14 of the Spanish Constitution. The judgment also held that the indications of discrimination which led to the court’s decision were irrespective of whether or not the employee was entitled to take time off work.

The possibility of discrimination by association has also been covered by the case law of the Supreme Court. In a judgment unifying a point of law handed down on January 29, 2020, the Supreme Court held as follows:

“The application of the principle of equal treatment and the prohibition on discrimination is not just limited to individuals with a protected characteristic. Rather, such protection is also applicable to persons who are treated less favorably for the same reason despite not being the person who is in the discriminated situation. We have therefore accepted the concept of discrimination by association, defined by the CJEU judgments of July 17, 2008 Coleman – C-303/06 – and July 16, 2015, CHEZ Razpredeleine Bulgaria AD – C-83/14 –, included in Spanish positive law (…)”.

In view of the above, we can conclude, firstly, that discrimination by association is a type of discrimination that persons can suffer indirectly, due to their relationship with others and, secondly, that in an employment situation, prima facie indications of such discrimination can condition the classification of a judgment.

In this regard, it is important to remember that in relation to the protection of fundamental rights, the legislature has established that if a dismissal breaches those rights, a certain reversal of the burden of proof occurs, whereby it is up to the company – once the claimant (employee) has justified the existence of sufficient prima facie indications (not full proof) that a fundamental right has been breached – to prove that the facts that led to the dismissal are legitimate or, at least, totally unrelated to any type of discrimination. If the employer is unable to evidence the absence of such relationship, the dismissal may be considered null and void, which leads to the obligation to reinstate the worker and pay the salary that has accrued in the meantime, even if the worker does not provide sufficient evidence of the actual link between the discriminatory treatment and the company’s decision to terminate his contract.

In this regard, companies should always safeguard the principle of equal treatment when taking decisions and be aware that the application of this principle involves the need to eliminate, in the words of the Supreme Court: “not just open discrimination, but all types of covert discrimination” such as discrimination by association.

In short, these court decisions caution that companies need to bear very much in mind the circumstances involved before deciding to terminate an employment contract and certainly to assess the need to prove the grounds for the dismissal in order to avoid it being considered discriminatory and, as a result, null and void.


Paula Aretio