Discriminatory dismissal for announcing a marriage: a case of gender discrimination?
Commentary to Supreme Court ruling 130/2022 of 9 February 2022 (Rec. 1871/2020)
Keywords:
dismissal, fundamental rights, marriage, marital status, discrimination on grounds of gender, maternity, dignityAbstract
The Supreme Court, in ruling 130/2022, of 9 February 2022 (Rec. 1871/2020), declares null and void the dismissal of the female worker who announces her marriage and requests the corresponding leave, on the grounds that it is a case of gender discrimination. This study addresses not only the relationship between marriage, women, motherhood, freedom, and dignity of the person, but also explores the possibility of including the situation as a case of discrimination on the grounds of "any other personal or social condition or circumstance" referred to in Art. 14 EC, analysing whether marital status would be included in the final clause of that provision. In addition, a critical study is made of whether the solution reached by the ruling could also be extrapolated to cases in which the announcement of the marriage was made by a man. This can be done both by examining international law and the judgments of the ECtHR and the Constitutional Court that address the issue.
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References
CANO GALÁN, Y.: “La contradicción ordinaria, a fortiori y a posteriori como cauce para la unificación de doctrina”, en GARCÍA MURCIA, J. (Dir.): El recurso de casación para la unificación de doctrina en el orden social de la jurisprudencia: un estudio a través de la jurisprudencia de la sala de lo social del Tribunal Supremo Madrid, BOE, 2020.
