Spanish legislation excluding domestic workers from unemployment benefit while they are almost exclusively women is contrary to EU law

Spanish legislation excluding domestic workers from unemployment benefit while they are almost exclusively women is contrary to EU law (Court of Justice of the European Union, 24 February 2022) That exclusion constitutes indirect discrimination on grounds of sex as regards access to social security benefits

The protection afforded by the special social security scheme for domestic workers under Spanish legislation does not include protection in respect of unemployment.

A domestic worker who is the employee of a natural person has been registered with that special scheme since January 2011. In November 2019, she applied to the Tesorería General de la Seguridad Social (General Social Security Fund, Spain, ‘the TGSS’) to pay contributions in respect of unemployment protection in order to acquire the right to those benefits.

Unemployment in case of domestic workers in Spain

The TGSS rejected that application on the grounds that the Spanish legislation expressly prevented her from contributing to that scheme in order to obtain protection from unemployment.

In today’s judgment, the Court holds that the directive on equality in matters of social security precludes a national provision which excludes unemployment benefit from the social security benefits granted to domestic workers by a statutory social security scheme, since that provision places female workers at a particular disadvantage compared with male workers and is not justified by objective factors unrelated to any discrimination on grounds of sex.

The Court notes that the category of workers excluded from protection against unemployment has not been meaningfully distinguished from other categories of workers which are not excluded. It points out that those other categories of workers, in respect of which the employment relationship takes place in the homes of non-professional employers or in respect of which the field of work has the same specific characteristics in terms of levels of employment, skills and remuneration as that of domestic workers, pose similar risks in terms of reduced levels of employment, social security fraud and recourse to illegal work, but are all covered by unemployment protection.

In addition, the Court adds that registration in the Special Scheme for Domestic Workers confers entitlement, in principle, to all the benefits granted by the general Spanish social security system except unemployment benefit.

That scheme covers, inter alia, risks related to work accidents and occupational diseases. There is also a lack of consistency in that respect, in so far as these other benefits present the same risks of social security fraud as unemployment benefit.

Finally, the Court considers that the Spanish legislation appears to go beyond what is necessary to achieve those objectives. Exclusion from unemployment protection entails the impossibility of obtaining other social security benefits to which domestic workers would be entitled and the granting of which is conditional on the extinction of the right to unemployment benefit. That exclusion would thus lead to a greater lack of social protection resulting in a situation of social distress.