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Emilija Berzanskaite
4th October 2021
Employment & Immigration Human Rights Tax

Insight: “AG Szpunar: Exclusion of unemployment protection for domestic workers in Spain is indirectly discriminatory towards women” by Emilija Berzanskaite

The principle of non-discrimination on grounds of sex

Non-discrimination on grounds of sex has been a long-discussed issue at the European and national level, with the principle being deeply enshrined in EU law (Article 157 TFEU, Articles 21 of the Charter of Fundamental Rights and various European Directives), and extensive jurisprudence of the Court of Justice.

The prohibition against discrimination on grounds of sex is two-folded and applies not only to situations where discrimination is direct – national laws treating one individual less favourably than another – but also to indirect discrimination, in which an apparently neutral provision, criterion or practice places persons of one sex at a disadvantage compared to those of the other sex, unless it is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

Throughout the past decades, the Court of Justice has already declared various national laws or schemes to be indirectly discriminatory and in breach of EU law, in cases such as Rinner-Kühn v FWW Spezial-Gebäudereinigung (C-171/88), Voß (C-300/06), Elbal Moreno (C‑385/11), Brachner (C‑123/10), to mention only a few. 

The provision that is being analyzed this time, in the context of the pending case TGSS (Domestic worker unemployment) (C-389/20), is Article 251(d) of the Spanish General Law on Social Security (Ley General de Seguridad Social), which precludes domestic workers covered by the Special Social Security Scheme to apply for unemployment protection.

The Spanish case and the Opinion of AG Szpunar

The case originates in the rejection of the application submitted by a female domestic worker, registered, with the Social Security Special Scheme, to the General Social Security Fund in Spain (Tesorería General de la Seguridad Social, TGSS) to pay contributions in respect of unemployment protection in order to acquire the right to benefits. The TGSS, directly applying the Spanish national legislation, rejected the application provided that it expressly prohibited the possibility for domestic workers under the Special Scheme to acquire unemployment protection.

The Administrative Court in Vigo (Spain), before which the appeal against the rejection was lodged, requested the Court of Justice to rule on whether the Special Scheme could be considered indirectly discriminatory towards women, and thus in breach of EU law, namely, Council Directive 79/7/EEC on equal treatment for men and women in matters of social security and Directive 2006/54/EC on equal opportunities and equal treatment of men and women in matters of employment and occupation.

In his Opinion on the case, released on 30 September 2021, Advocate General (AG) Szpunar considered that the Spanish rules excluding domestic workers from unemployment benefits, where those workers are almost exclusively women, is contrary to EU law.

  • Particular disadvantage to women

Given that the existence of  ‘disadvantage’ depends mostly on a factual assessment, AG Szpunar observed that it will be ultimately up to the referring court to evaluate all the factual circumstances at hand in order to ascertain whether the Special Scheme is indirectly discriminatory.

However, in his view, all the evidence presented in the case points to the fact that women are overwhelmingly disadvantaged. The proportion of men and women covered by the General Social Security Scheme, under which all employed persons are in principle entitled to unemployment benefits, is roughly equal. However, when such assessment focuses on the Special Scheme, the proportion differs to a significant extent, women making up 95% of the domestic workers covered. Such a situation creates a particular disadvantage for women domestic workers.

  • Objective justification

AG Szpunar then assessed whether such difference in treatment could be justified by objective reasons, unrelated to sex. 

He noted that the justifications submitted by the Spanish Government and the TGSS in this regard, in principle, were all legitimate social policy objectives. In particular, their arguments were that the difference in schemes is justified by objectives related to the specific characteristics of the domestic worker and the status of their employers, and objectives concerning employee protection, safeguarding the level of employment, and combating illegal work and fraud.

However, AG Szpunar advised the Court of Justice to dismiss these arguments, following an analysis of them from the perspective of the  Member States’ obligation to comply with the principle of non-discrimination on grounds of sex in matters of social security when exercising their administrative power.

Firstly, AG Szpunar noted that the characteristics of a domestic worker (as a lowskilled worker who is remunerated by minimum wage) and the status of employers (households) are strongly connected to gender stereotypes and the traditional family model, and therefore hold a strong connection to discrimination on the basis of sex.

Further, he considered that if the reason for the difference in treatment is to prevent domestic workers from committing fraud, then following such logic, the exclusion from unemployment benefits should be applied to all low-skilled workers in other sectors as well. However, since such is not the case, the exclusion of domestic workers seems unjustified.

Regarding the objective of safeguarding the level of employment of domestic workers by preventing the increase in undeclared work, AG Szpunar stated that the exclusion would only lead to reinforcement of the traditional social view of gender roles, and would not only exploit the structurally weaker position of domestic workers, but also undervalue their work, which should, on the contrary, be recognised and valued by society.

  • Adequacy and necessity

AG Szpunar considered that, in any event, the exclusionary provision in question does not appear to be appropriate to securing the alleged objectives, since the Special Scheme does not seem either genuinely to reflect a concern to combating illegal work, fraud and safeguarding employment, or to pursue these goals in a consistent and systematic manner, given that the only category of workers excluded from protection against unemployment is that of domestic workers.

He also found that, by fully excluding all domestic workers from entitlement to unemployment benefits, the national law goes beyond what is necessary to attain the social policy objectives pursued.

Reoccurring issue

Should the Court of Justice follow AG Szpunar’s Opinion, it would not be the first time that it finds a provision of Spanish social security law as indirectly discriminatory towards women.

In Elbal Moreno (C‑385/11), the Court of Justice found that the national provision on contributory retirement pensions for part-time workers, who were mainly women, was discriminatory. This was followed by a judgment of the Spanish Constitutional Court seven years later declaring that provision unconstitutional. 

Similarly, in Bocero Torrico (C‑98/15), the Court of Justice found that a national provision on ‘vertical’ part-time work, excluding days not worked from the calculation of days in respect of which contributions had been paid, and therefore reducing the unemployment benefit payment period and affecting mostly women, was indirectly discriminatory, which led to a legislative reform in Spain almost three years later.

The Opinion of AG Szpunar opens once again the discussion on the compatibility of the Spanish social security regime with the principle of non-discrimination on grounds of sex and on the goals of indirect sex discrimination law, which, read in light of the AG’s Opinion, appear to encompass the recognition of personal life choices and burdens outside the gendered norms as well as protection of individuals from the imposition of traditional stereotypes, which no longer reflect our current society.

 Read the Opinion of AG Szpunar here (not available in English at the time of publication).


Emilija Berzanskaite is a Legal Reporter at EU Law Live.


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