On Thursday 24 February the Court of Justice of the European Union condemned (Case C-389/20), the special Spanish social security system for domestic workers - almost exclusively women - which does not give these workers the possibility to contribute to unemployment benefits and therefore effectively excludes them from receiving these benefits. According to the European judges, this exclusion constitutes indirect discrimination on the basis of sex in access to these benefits.
The Vigo Administrative Court, hearing an action by a domestic worker who claimed that the legislation excluded her not only from unemployment benefits but also from other conditional social assistance, asked the Court whether the legislation in question constitutes indirect discrimination on the grounds of sex under the social security equality directive (Council Directive 79/7/EEC).
In its judgment, the Court recognises this discrimination. Taking into account the fact that women constitute more than 95% of domestic workers in Spain, it considers that the special system applied to domestic workers puts female workers at a particular disadvantage and thus entails indirect discrimination based on sex contrary to the Directive.
In particular, it considers that the exclusion of domestic staff from unemployment protection - justified by the Spanish Government as being necessary to safeguard the level of employment in a sector where employers are not professionals and to combat social fraud and illegal work - goes beyond what is necessary to achieve these objectives and makes it impossible for such staff to obtain other social security benefits, the granting of which is conditional on the extinction of their right to unemployment benefits (e.g. permanent disability benefits or social assistance for people out of work), thus placing them in a situation of social distress.
Moreover, according to the judges, this exclusion applying only to domestic staff appears inconsistent with the objectives pursued. Indeed: - other categories of workers of the same qualification level whose employment relationship takes place in the home under similar conditions are covered by unemployment protection; - membership of the special system for domestic workers gives, in principle, the right to all benefits granted by the general Spanish social security system, excluding unemployment benefits.
Link to the judgment: https://aeur.eu/f/hm (Original version in French by Francesco Gariazzo)