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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. 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.

The worker then appealed to the Juzgado de lo Contencioso-Administrativo No 2 de Vigo (Administrative Court No 2, Vigo, Spain) claiming in essence that the national legislation places domestic workers in a situation of social distress when their employment ends for reasons which are not attributable to themselves. That prevents them from obtaining not only unemployment benefit but also the other types of social assistance which are dependent on entitlement to unemployment benefit having come to an end.

In that context, the Spanish court emphasizes that the category of workers in question consists almost exclusively of women, which is why it asks the Court to interpret the directive on equality in matters of social security, 1 in order to determine whether there is indirect discrimination on grounds of sex, which is prohibited by that directive. 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 recalls at the outset that indirect discrimination on grounds of sex occurs when an apparently neutral provision places persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision is objectively justified and proportionate.

While noting that it is for the Spanish court to examine whether that is the situation in the present case, the Court of Justice provides guidance to it in that regard.