If you are a pregnant employee facing dismissal, this article is essential for understanding your rights. For personalized advice, please contact Fernanda Vargas via WhatsApp or book an appointment.

What the Law Exactly Protects: The Objective Nullity under Article 55.5 b) of the Workers’ Statute

Spanish legislation provides strong protection for pregnant employees by establishing the objective nullity of dismissals through Article 55.5 b) of the Workers’ Statute. This provision renders null a disciplinary dismissal initiated during pregnancy, without requiring evidence of discriminatory intent or even the employer’s knowledge of the pregnancy. The consolidated jurisprudence of the Supreme Court supports this automatic protection, ensuring that the employee is safeguarded from the start of her pregnancy until the suspension period for childbirth and childcare begins.

Objective Nullity vs. Discrimination Nullity: How the Difference Affects Your Compensation

It is crucial to differentiate between objective nullity and nullity for discrimination. While a discrimination nullity requires proving unfavorable treatment related to pregnancy or maternity (as stipulated by Organic Law 3/2007 and Law 15/2022), objective nullity based on Article 55.5 b) is applied automatically. In cases deemed objectively null, the employer must reinstate the employee under the original contractual conditions and pay the back wages (known as wages of procedure), rather than opting for compensation. This distinction is vital when determining the compensation and the legal process involved.

The Probation Period: The Weak Link in Protection – The TSJ Madrid Ruling of July 1, 2026

The probationary period represents one of the more challenging areas in protecting pregnant employees. Traditionally, dismissal during the probationary period (under Article 14 of the Workers’ Statute) has followed different rules. However, the ruling by the Superior Court of Justice of Madrid on July 1, 2026, has set a precedent by declaring null the termination of a pregnant worker during her temporary incapacity. The case, which involved content posted on social networks during her leave, highlighted issues of privacy and evidence, and applied the objective nullity standard. Although this approach represents a trend in the lower courts, it is not yet unified by the Supreme Court.

Disciplinary Dismissal, Objective Dismissal, and the End of a Temporary Contract: Three Distinct Situations

Not all dismissals are equivalent. For pregnant employees, it is essential to distinguish among disciplinary dismissals, objective dismissals, and the termination of temporary contracts. Disciplinary dismissals are linked to reproachable conduct, while objective dismissals relate to economic, technical, or organizational reasons. The end of a temporary contract, however, simply follows the agreed term. The application of nullity provisions differs in each case, with a clear focus on whether the employment termination can be linked to discrimination. This knowledge helps clarify your rights and the subsequent legal and financial implications.

Domestic Workers: Nullity Even if the Employer Is Unaware of the Pregnancy (Supreme Court Ruling of January 27, 2022)

The employment of domestic workers, which is predominantly held by women and largely includes immigrants, has received special judicial attention. The Supreme Court ruling on January 27, 2022, declared that the dismissal of a pregnant domestic worker is null, even if the employer was unaware of her pregnancy. This decision reinforces Article 55.5 b) of the Workers’ Statute with a gender perspective, ensuring that the worker’s rights are protected regardless of the employer’s knowledge of her condition.

Before the Conflict: Workplace Adaptation, Job Modification, and Maternity Risk Benefits

Prevention is as important as post-dismissal remedies. Under Article 26 of the Prevention of Occupational Risks Law, employers must evaluate potential risks during pregnancy and lactation. If risks are detected, they must adapt working conditions or transfer the employee to a safer position. Should these measures be inadequate, the employee may face a suspension of contract due to pregnancy-related risks, for which she is entitled to a benefit equivalent to 100% of her regulatory base. This provision is distinct from a conventional medical leave and does not reduce the worker’s employment continuity, thereby ensuring a safer and more stable working environment.

What To Do if You Are Dismissed While Pregnant: 20-Day Deadlines, Paperwork, and Evidence Preparation

If you are dismissed during pregnancy, immediate action is crucial. You have 20 working days to file a conciliation claim and subsequently launch a legal action against the dismissal. Being organized is key; gather medical certificates, internal communications, and any evidence indicating that your dismissal was discriminatory or in breach of legal protections. Professional legal advice is recommended to ensure that you compile the necessary evidence and documents to support your claim effectively.

Consequences for the Company: Reinstatement, Back Wages, and Labor Inspectorate Sanctions

When a dismissal is declared null, the company is legally required to reinstate the employee under the original working conditions and pay back wages from the date of dismissal. Additionally, unilateral decisions by the company that result in discrimination are subject to severe administrative sanctions. Under the updated regulations, fines for very serious infractions can reach amounts as high as 225,000 euros, serving as an important deterrent against violations of women’s workplace rights.

Foreign Workers: Impact on Employment History and Residence Renewal

For foreign workers, a dismissal that interrupts contribution periods can have long-term effects on employment history and the renewal of residence permits, as stipulated by the Immigration Regulations. The nullification of a dismissal restores not only continued employment but also the uninterrupted contribution record, which is crucial for validating work history. This provision is especially significant in sectors with high rates of female migrant workers, such as domestic work, hospitality, and agriculture.

Frequently Asked Questions and Common Mistakes

Below are some FAQs and the most common mistakes in cases of dismissals involving pregnant workers:

• What documentation is required? Collect all relevant documents including pregnancy certificates, medical reports, internal communications, and any evidence indicating discriminatory practices.
• What are the deadlines? You must file the conciliation claim within 20 working days from the date of dismissal.
• Is a dismissal during the probation period the same? No. Although the Constitutional Court requires evidence of discrimination during the probation period, the recent TSJ Madrid ruling has modified this approach in some cases.
• What if you are a foreign worker? Act quickly to prevent the interruption of your contribution record, which is essential for the renewal of your residence permit.

By avoiding common mistakes and acting promptly, you can safeguard your rights and ensure adequate compensation and reinstatement. Do not hesitate to seek specialized legal advice.

For more detailed insight and personalized assistance, contact Fernanda Vargas via WhatsApp or book an appointment.