Pregnancy and Work in Spain: Protection Against Dismissal

🇪🇸 Read the original in Spanish

Motherhood is one of the most significant stages in a person's life, but in the professional sphere, it often generates uncertainty and fear of potential retaliation or job loss. In Spain, the legal system offers a very robust shield to protect pregnant workers, guaranteeing that pregnancy cannot, under any circumstances, be used as a reason for professional penalisation or dismissal. In this article, we analyse in depth how protection against dismissal works during pregnancy, what your rights are under current legislation, and how to act step-by-step if you find yourself in a vulnerable employment situation.

The Legal Framework of Protection: What Does Spanish Law Say?

Maternity protection at work is not a privilege, but a fundamental right enshrined in the Spanish Constitution (Article 14 on non-discrimination and Article 39 on the protection of the family). This constitutional mandate is developed in a very specific manner within our country's labour regulations.

The Workers' Statute (RDL 2/2015)

The key regulation is the Real Decreto Legislativo 2/2015, de 23 de octubre, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015, of 23 October, approving the consolidated text of the Workers' Statute, hereinafter referred to as the ET).

Article 55.5 of the ET (for disciplinary dismissals) and Article 53.4 of the ET (for objective dismissals) identically establish objective and automatic protection. According to these provisions, the dismissal of the following individuals will be nulo (null and void):

• Female workers during the period of suspension of the employment contract due to birth, adoption, guardianship for the purpose of adoption, or foster care.
• Pregnant workers, from the start date of the pregnancy until the beginning of the aforementioned suspension period.
• Individuals who have requested or are enjoying leave for breastfeeding, reduction of working hours to care for a minor, or family leave.
• Workers who have returned to work after the end of the suspension periods for birth, provided that no more than 12 months have elapsed since the child's birth date.

The Law Regulating Social Jurisdiction (Ley 36/2011)

The Ley Reguladora de la Jurisdicción Social (LRJS) determines the procedural path to challenge these dismissals. In Article 108.2, the LRJS classifies the dismissal of pregnant workers as null and void unless the employer unequivocally proves that the dismissal was justified for reasons completely unrelated to pregnancy or maternity.

The General Social Security Law (LGSS)

The Ley General de la Seguridad Social (LGSS) financially protects workers in situations of risk during pregnancy (Article 186) and during the birth and care of a minor (Article 177), guaranteeing a subsidy equivalent to 100% of the regulatory base (base reguladora).

Objective Nullity: The Automatic "Shield"

One of the most important aspects you should know is that the protection is objective. This means that you do not need to have previously notified the company of your pregnancy to be protected.

If the company dismisses you while you are pregnant (even if you are only a few weeks along and the employer did not know), the dismissal will be declared nulo by the courts, unless the company can prove an extremely serious cause completely unrelated to the pregnancy (for example, the complete closure of the business or an extremely serious breach of contract for which irrefutable evidence exists).

Difference Between Null Dismissal and Unfair Dismissal

It is vital not to confuse these concepts:

• Despido improcedente (Unfair dismissal): The dismissal is unjustified. The company can choose between reinstating you or paying you severance compensation (currently 33 days of salary per year worked, up to a maximum of 24 monthly payments).
• Despido nulo (Null/Void dismissal): The dismissal violates fundamental rights (in this case, due to discrimination based on sex/pregnancy). There is no option for the company to pay compensation instead of reinstatement: reinstatement is mandatory and immediate, along with the payment of salarios de tramitación (back pay/lost wages from the date of dismissal until effective reinstatement).

Practical Procedures: What to Do Step-by-Step if Dismissed While Pregnant

If the company decides to dismiss you or notify you of the termination of your contract while you are pregnant, you must act quickly and calmly. Follow these steps to guarantee the defence of your rights:

1. Sign the dismissal letter as "No conforme": When you are handed the dismissal letter and the finiquito (settlement agreement), sign it by writing the phrase "No conforme" (Not agreed) in your own handwriting next to the date of the day you receive it. This does not prevent you from collecting the settlement money, but it leaves the door open for a legal claim.
2. Obtain the medical report of pregnancy: Ask your GP or gynaecologist from the public health service (or private health insurance/mutual fund) for a report stating your estimated due date or weeks of gestation. This will serve to prove that you were already pregnant on the date of dismissal.
3. File the Papeleta de Conciliación: This is a mandatory administrative step before going to court. You must file this papeleta de conciliación (conciliation petition) before the mediation, arbitration, and conciliation service of your Autonomous Community (for example, the SMAC in Madrid or the CMAC in Andalusia). The deadline to file it is 20 business days (excluding Saturdays, Sundays, and public holidays) from the day following the dismissal.
4. Attendance at the conciliation act: Both parties will be summoned to try to reach an agreement. If the company recognises the nullity or agrees to reinstatement, the process can end here. If there is no agreement (or the company does not show up), the minutes will be signed as "without agreement" (sin avenencia).
5. Filing the lawsuit: If the conciliation ends without an agreement, you must file a lawsuit before the Juzgados de lo Social (Labour Courts). The 20-day deadline resumes from the day following the conciliation act (or after 15 days from filing the petition if the act has not yet taken place).

Deadlines, Amounts, and Key Figures to Remember

In the Spanish labour sphere, timelines and financial amounts are strict. Here are the most important numerical details you need to memorise:

• 20 business days: The non-extendable deadline you have to challenge the dismissal through the conciliation petition and the subsequent lawsuit.
• 100% of the regulatory base: The amount you will receive during your leave for the birth and care of a minor (formerly maternity leave), which lasts 16 weeks (extendable by 2 additional weeks for multiple births or child disability).
• 12 months: The protection shield period after childbirth. From the moment you return from birth leave until the baby turns one year old, any unjustified dismissal will be null and void.
• 100% of back pay (salarios de tramitación): If the judge declares the dismissal null, the company must pay you all the wages you stopped receiving from the day of the dismissal until the day of your actual reinstatement.

Practical Examples with Real Figures

To better understand how these rules apply, let us analyse two common scenarios:

Example 1: Laura's dismissal during the first trimester

Laura works as an administrative assistant at a logistics company in Barcelona, with a gross monthly salary of 1,800 €. She has been with the company for 2 years. She discovers she is 8 weeks pregnant and decides not to tell her boss yet out of caution. The following week, the company hands her a dismissal letter alleging "drop in performance," without providing any proof.

• Resolution: Laura challenges the dismissal. Even though the company claims they did not know she was pregnant, the court automatically declares the dismissal nulo (objective nullity).
• Financial outcome: The company is ordered to reinstate Laura to her job immediately. If the court process took 5 months to resolve, the company must pay Laura 9,000 € in back pay (1,800 € x 5 months), in addition to maintaining her Social Security contributions for that entire period.

Example 2: Valeria's dismissal after returning from leave

Valeria gives birth to her child and enjoys her 16 weeks of birth benefit. Upon returning to her job as a shop assistant (gross salary of 1,200 €), she requests a reduction in working hours (reducción de jornada) to care for a child under 12 years old. 3 months after her return, the company carries out an individual objective dismissal alleging general economic causes, but fails to prove that eliminating her specific position was essential.

• Resolution: Since she is within the 12-month period following childbirth and is enjoying a reduction in working hours, Valeria's dismissal is declared nulo.
• Financial outcome: Valeria returns to her job with her reduced working hours respected and collects the back pay corresponding to the time she was away from the company.

Mistakes You Must Avoid

Making mistakes during the dismissal process or during pregnancy can weaken your legal position. Avoid the following errors at all costs:

• Not signing the dismissal letter or refusing to receive it: Refusing to sign does not prevent the dismissal from being valid (the company can sign it with two witnesses). The correct procedure is to always sign, writing "No conforme" and the actual date of receipt next to your signature.
• Letting the 20 business days deadline pass: The expiration deadline (plazo de caducidad) in Spanish labour law is extremely short. If you miss the 20 days, you will lose the right to claim the nullity of the dismissal, no matter how unfair it was.
• Signing a settlement (finiquito) with waiver clauses: Some settlement documents include phrases like "the worker declares themselves fully settled and waives any subsequent claims." If you sign this without writing "No conforme", you will seriously complicate your defence in court.
• Believing that temporary contracts have no protection: If you are on a temporary contract and they dismiss you early (or fraudulently choose not to renew it while you are pregnant), you can also claim nullity. Temporary employment is not a blank check to discriminate.

Frequently Asked Questions (FAQ)

Am I obliged to inform my company that I am pregnant?

No, there is no legal obligation to notify the company of your pregnancy within a specific timeframe. You can communicate it when you feel comfortable. However, it is advisable to do so in writing (for example, via email or a letter with a stamped copy) if you need to request adaptations to your workstation for health or safety reasons, or to avoid misunderstandings, although protection against dismissal operates even if you have not communicated it.

Can I be dismissed while pregnant if it is an objective dismissal for economic reasons?

Yes, but the company faces an extremely high burden of proof. For the dismissal of a pregnant woman to be declared justified under objective causes (economic, technical, organisational, or production), the company must unequivocally prove that the cause is real, severe, and necessarily affects your specific job, with no possibility of relocation. If the company is dismissing other workers and has demonstrable, widespread losses, the dismissal could be justified; otherwise, it will be declared null.

What happens if I am in a trial period and I am dismissed for being pregnant?

The trial period (periodo de prueba) is not a zone free of fundamental rights. Article 14 of the Workers' Statute expressly prohibits the termination of the contract during the trial period at the company's initiative if the worker is pregnant, unless there are reasons completely unrelated to the pregnancy and these are rigorously proven. If your contract is terminated during the trial period after they find out about your pregnancy, it will be presumed null due to discrimination.

Am I entitled to compensation for damages in addition to reinstatement?

Yes. In cases of null dismissal due to the violation of fundamental rights (such as pregnancy discrimination), Spanish Supreme Court jurisprudence allows for the request of additional compensation for moral damages (daños morales). This amount is usually calculated based on the penalties established in the Ley sobre Infracciones y Sanciones en el Orden Social (LISOS - Law on Infractions and Sanctions in the Social Order), and can range between 7,500 € and 225,018 € depending on the severity and circumstances of the case.

In Summary

• Automatic protection: The dismissal of a pregnant worker is objectively null, without the need for the company to have prior knowledge of the state of pregnancy.
• Consequence of nullity: A declaration of nullity forces the company to immediately reinstate the worker and pay the back wages accrued during the process.
• Extended shield period: Protection extends throughout the pregnancy, the 16 weeks of birth suspension, and until the minor turns 12 months old.
• Critical reaction window: You have a period of only 20 business days to file the conciliation petition and challenge the dismissal.
• Always sign with caution: Upon receiving any dismissal notice or settlement, always sign indicating "No conforme" next to the date to safeguard your right to claim.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.