Isabel González rejoined her job as a security guard in Lugo, four months after becoming a mother. His day included eight-hour shifts and Part of the day was at night. Since he was still breastfeeding his son, he asked his company for the suspension of the contract and an economic benefit, taking advantage of the risk during breastfeeding collected by Spanish law.
Your request was denied and ended up filing a complaint with the TSJ of Galicia. In turn, this autonomous body went to the Court of Justice of the European Union (CJEU) to answer several questions about the lawsuit. Now, Europe is right to Isabel: "There was" apparently "a personalized study of the risks and the interested party suffered discrimination."
What did the mother claim?
Isabel González asked Prosegur, the security company for which she worked as a security guard, the suspension of the contract and an economic benefit.
She had reintegrated after her maternity leave four months after she was a mother and was breastfeeding her son, so by assigning her eight-hour rotating shifts that included night hours at a shopping center in Lugo, she understood that there was a health risk , based on Law 31/1995, of November 8, on Occupational Risk Prevention.
To achieve this, he asked the Umivale labor mutual for the medical certificate that accredited the existence of some kind of danger in his case, but he refused to give it to him and the company filed his claim, because without a certificate, there is no discharge.
Therefore, Isabel denounced a possible discrimination before the Superior Court of Justice of Galicia (TSXG), which decided to go to the Court of Justice of the European Union (CJEU) to answer several questions about the lawsuit.
What does European law say?
The High Court of Justice of Galicia asks the European:
Can you talk about night work even if it's only part of that schedule?
If it is possible that the assessment of the risks presented by Isabel's job was not carried out correctly and that, in reality, her job posed a risk to her health or safety.
Is it the worker or the mutual that must demonstrate that working conditions "are not technically or objectively possible"?
Make the query based on two European regulations:
- Council Directive 92/85 / EEC of 19 October 1992 on the application of measures to promote the improvement of safety and health in the work of the pregnant worker, who has given birth or during the period of lactation. This says that women:
"They should not be forced to perform a night job during pregnancy or during a period following the delivery, subject to the presentation of a medical certificate attesting to the need for it for their safety or health."
- Directive 2006/54 / EC of the European Parliament and of the Council of 5 July 2006, on the application of the principle of equal opportunities and equal treatment between men and women in matters of employment and occupation. According to this standard:
“When a person who considers himself injured due to not having applied the principle of equal treatment present, before a court or other competent body, facts that allow presuming the existence of direct or indirect discrimination, it is up to the defendant to prove that he has not there was a violation of the principle of equal treatment ”.
What does the EU Court of Justice answer?
- Recognize that the guard's shift work is considered a night job, since Directive 92/85 does not contain any precision about the exact scope of the concept of night work.
In addition, it states that the general provisions of Directive 2003/88 EC of the European Parliament and of the Council of 4 November 2003, concerning the organization of working time, it follows that A worker who does a shift job that includes night hours must qualify as a night worker.
- Like any activity that may involve a specific risk for a pregnant or nursing woman, a medical certificate that clearly exposes the dangers of work must be issued.
The European Court of Justice insists that:
“You have to study the individual situation of the employee and determine if her health or her safety or that of her son are exposed to a risk. In the event that such examination has not been carried out (which is what apparently happened in this case), there will be less favorable treatment for a woman in relation to pregnancy or maternity leave. ”
That is, acting involves discrimination based on sex.
Now the decision is in the hands of the Superior Court of Justice of Galicia, which is the one that will have to rule in favor or against Isabel González.
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