Invalidity of the unsuccessful probationary period
The Supreme Court held that the dismissal of a pregnant worker was null and void because the probationary period was not specified and only referred to the maximum fixed by the Collective Agreement.
The Supreme Court, in its ruling no. 1246/2021 of 9 December, issued in unification of doctrine, considers the dismissal of a pregnant woman to be null and void for failure to specify the trial period. According to the proven facts, the contract signed between the worker and the company established a trial period “according to the agreement or art. 14.1 of the ET”, as well as the interruption of the same period in the event of temporary incapacity (TI).
The applicable collective agreement did not establish a specific duration period, but only a maximum period, as does the ET, leaving its specification to the will of the parties. The worker had informed the recruiting company that she was pregnant, and the company was also informed of this after she was hired.
While the probationary period was still in force, the worker began the TI process. Four days later, while still on sick leave, the worker was informed of her termination due to failure to complete the trial period. In this scenario, the issue to be resolved by the Supreme Court was to determine whether or not it was valid to set the probationary period by reference to the period regulated in the applicable Collective Bargaining Agreement or in art. 14 ET.
Thus, the SC considered that, in the specific case, the agreement establishing the trial period was null and void and could not have any effect, meaning that the trial period had not been agreed, as it understood that it was not sufficient for it to be agreed in writing, but that the exact duration of the trial period must also be stated.
The high court reached the above conclusion because it considered that the fixing in writing of the exact duration of the trial period is a minimum right of the worker the reason for this is the inherent consequences of this period, since during this period, either of the contracting parties is entitled to withdraw from the contract, without the right to any compensation, a consequence which is particularly burdensome for the worker.
On the contrary, the SC also clarified that a different conclusion would be reached if the collective agreement fixed a specific duration and not a maximum duration, as was the case in the contrasting judgment submitted by the company. In such a case, the reference to the collective agreement would be valid.
The Supreme Court ultimately upheld the nullity of the dismissal of the pregnant worker because, as the clause was null and void, this meant that the dismissal of the worker had not taken place during the probationary period, and in this case the company should have alleged a specific cause for the dismissal.
Therefore, since the worker was pregnant, and the company was aware of this, the consequence in such cases was the nullity of the dismissal and the reinstatement of the worker.
Although in this case the court did not assess it, we must point out that the nullity of the dismissal would also occur even if the company was not aware of the worker’s pregnancy , as already established in the STS of 28 November 2017.
Finally, it is worth mentioning the SC ruling of 25 June 2020, in which the court ruled that the dismissal could not be declared null and void when the pregnancy situation was not alleged in the conciliation letter.
