Recognition of unemployment benefits in the Special System for Household Employees and other modifications of special relevance
Royal Decree-Law 16/2022, of September 6, for the improvement of working conditions and social security for domestic workers, has been published.
On Tuesday, September 6, the Council of Ministers approved the Royal Decree-Law for the improvement of the working conditions and social security of domestic workers, a historic regulation that puts an end to the discrimination suffered, for the most part, by many women and to which reference had already been made in a recent Addnews.
The text has been drafted in contact with trade union organizations and platforms of domestic workers who have been demanding this regulation for decades. The aim of the regulation is to equalize the working and Social Security conditions of domestic workers to those of other employees in order to put an end to the historical differences of this group.
This element of devaluation of domestic work has been maintained in the regulations and is now corrected, by means of this decree, to put an end to the historical undervaluation of a job performed mainly by women, which has contributed to the perpetuation of stereotypes and to the worsening of the gender gap. It is therefore resolved here to put them on an equal footing with salaried workers, both in terms of the system for terminating the employment relationship and in terms of unemployment benefits.
Health and safety protection
The first amendment of the Royal Decree refers to the protection of health and safety at work of this group in the scope of the special employment relationship of the family home service.
For this purpose, it is intended to guarantee, through the corresponding regulatory development, a level of protection of the safety and health of the persons in the service of the family home equivalent to that of any other worker. Although it cannot be ignored that the employer does not have a business entity, this fact cannot be an obstacle to achieve the full protection of these workers in the preventive field, since this is essential not only to ensure the equality of conditions required by the anti-discrimination regulations of the European Union and ILO Convention 189, but also to guarantee the constitutional right to health that corresponds to all persons.
The third article establishes the regulatory modifications necessary to establish equality in the field of Social Security between domestic workers and the rest of the workers employed by others. In this way, those precepts of the Social Security regulations which place female workers at a particular disadvantage with respect to male workers and which are not justified by objective factors unrelated to any discrimination on the grounds of sex are modified.
Therefore, Article 251 -with the deletion of letter d)- of the rewritten text of the General Social Security Law is amended so that unemployment is not excluded from the protective action of the Special System for Household Employees.
In addition to this modification in the access to unemployment, it also establishes, on the one hand, the obligation of contribution of the domestic service employers by FOGASA and, on the other hand, it provides indemnity coverage to the domestic service workers in the cases of insolvency or bankruptcy of the employers. For practical contribution purposes, the new right of access to unemployment benefits and to the right to assistance, if applicable, from the Wage Guarantee Fund (FOGASA) means that as from October 1:
- The unemployment contribution rate will be 6.05%, of which 5% will be paid by the employer and 1.05% by the employee.
- The contribution rate to the Wage Guarantee Fund will be 0.2%, to be paid exclusively by the employer.
In order to contain the increase that employers are going to suffer with this increase in rates, the persons who have hired or hire under any contractual modality a person working in the service of the household and register him/her in the General Social Security Regime, will have (and will continue to have) the right to a reduction of 20 percent in the business contribution to the Social Security contribution for common contingencies corresponding to the Special System for Household Employees established in said regime. Likewise, and this is the novelty, they will be entitled to an 80 percent reduction in the employer’s contribution to the unemployment contribution and to the Wage Guarantee Fund in that Special System.
With respect to the bonuses for hiring caregivers in large families that were being applied on April 1, 2023, they will remain in force until the date of effect of the cancellation of the caregivers who are entitled to them in the General Social Security Scheme. However, such bonuses will be incompatible with the reductions mentioned in the previous paragraph.
Likewise, and to finish with the contribution section, the decree establishes that employers will assume the contribution obligations for workers who render their services for less than 60 hours per month per employer, thus eliminating the possibility that the workers themselves are the ones who directly request their affiliation and payment of contributions, registrations, cancellations and variations of data.
Ordinary protection in the event of dismissal
The other important measure of this Royal Decree is the modification of the termination regime for this group, putting it on a par, except for certain exceptions, with that regulated in the Workers’ Statute, thus granting domestic professionals ordinary protection in the event of dismissal, and eliminatingfrom the legal system the figure of abandonment, which allowed dismissal without cause.
Consequently, the Royal Decree-Law amends Article 11 of Royal Decree 1620/2011, of November 14, so that the termination, without prejudice to the common causes provided for in the Workers’ Statute, can only occur for just cause in view of the particularities of the employment relationship in the home, describing, on the one hand, the specific situations that would enable this special form of termination and ensuring, on the other hand, that the termination decision has been taken by the employer on the basis of objectively assessable circumstances.
Thus, by reason of the foregoing, the following are included as causes that can justify the termination and are subject to the legal regime provided for in the preceding paragraph: the decrease in the income of the family unit or an increase in its expenses due to a supervening circumstance, such as the loss of work or the declaration of incapacity for work of the employer; the substantial modification of the needs of the family unit that justify that the person working in the home is dispensed with, such as, among others, the assumption of the mentioned tasks by a public entity or the change in the care needs of a member of the family unit; as well as the behavior of the worker that justifies in a reasonable and proportionate manner the loss of confidence of the employer.
The decision to terminate the contract must be communicated in writing to the household employee, stating clearly and unequivocally the employer’s intention to terminate the employment relationship and the reason for such decision.
Simultaneously to the communication of the termination, the employer must make available to the worker an indemnity, in an amount equivalent to the salary corresponding to twelve days per year of service with the limit of six monthly payments.
In the event that the rendering of services has exceeded the duration of one year, the employer must grant a notice period of at least twenty days, calculated from the date on which the employee is notified of the decision to terminate the employment. In all other cases the notice period shall be seven days.
In the event that the dismissal is subsequently ruled to be unjustified, the severance payment is increased from 20 to 33 days per year worked, thus equaling that of workers under the general regime.
Facilitating entry and incorporation into the labor market
Finally, and in relation to the above, it is important to remember that Royal Decree 629/2022, of July 26, has reformed the regulations in order to facilitate the entry and incorporation of foreign workers into the labor market, including those who are in an irregular situation in Spain, under certain conditions.
The reform, which entered into force generally on August 16, 2022, aims to address the growing mismatches in the Spanish labor market due to labor shortages, to respond to unresolved situations, to adapt work authorizations to the new hiring established by the labor reform and to update some figures already established by case law and foreigners’ instructions. For these purposes, the figure of “arraigo” has been adapted to the jurisprudence and the labor reality.
In this way, foreigners who can prove that they have been continuously in Spain for a minimum period of two years, provided that they do not have a criminal record in Spain and in their country of origin or in the country or countries in which they have resided during the last five years, that they can prove the existence of employment relationships lasting not less than six months, and that they are in an irregular situation at the time of the application, may obtain an authorization.
For the purposes of accrediting the labor relationship and its duration, the interested party must present any means of proof that accredits the existence of a previous labor relationship carried out in a legal situation of stay or residence. For these purposes, it will be accredited the accomplishment, in the last 2 years, of a labor activity that supposes, in the case of activity for an employee, at least a working day of 30 hours per week in the period of 6 months or 15 hours per week in a period of 12 months, and in the case of self-employment, a continuous activity of, at least, six months.
This regulatory change is of particular importance for the group of domestic workers (in addition to being a clear warning to employers) due to the significant presence of foreigners in an irregular situation in Spain, and in addition to the fact that it is estimated that between 175,000 and 200,000 people carry out this activity in a situation of submerged economy.
The Royal Decree itself, which is the subject of this article, also aims to tighten the siege on the underground economy and irregular employment situations by underpinning the form of the employment contract which, unless proved otherwise, and in the absence of a written agreement, will be presumed to be concluded for an indefinite term and on a full-time basis, and where either of the parties may demand that it be formalized in writing, even during the course of the employment relationship.
The labor management department of AddVANTE remains at your disposal to provide further information or resolve any doubts that may arise in connection with this article.