When an employer dismisses a pregnant worker, the law does not treat it like any other dismissal. The protection is among the strongest in labour law: the dismissal is presumed to be aimed at punishing the pregnancy, and it is the employer who has to prove otherwise. This article explains what that protection covers, how long it lasts, what you can claim and what to do in the first days.
The rule: void, unless proven otherwise
Article 55.5.b of the Estatuto de los Trabajadores (Workers Statute) declares void (nulo) the dismissal of pregnant workers from the date the pregnancy begins until the start of the period of suspension for birth, unless the dismissal is declared fair (procedente) for reasons unrelated to the pregnancy.
Two ideas sum it up:
- Nullity is the rule. You do not have to prove that you were dismissed because you were pregnant. It is enough to show the pregnancy and the dismissal.
- The employer can escape only if it proves that the dismissal is fair for another real cause, such as a proven serious offence or an established objective cause, which has nothing to do with the pregnancy.
An unfair dismissal (improcedente) is not enough for the employer to win: if the reason is not proven, the dismissal is void, not simply unfair. That is the key difference, because nullity is not settled with money: it forces readmission.
What if the employer did not know I was pregnant?
This is the most frequent doubt. The position maintained by the Constitutional Court and the labour courts is that nullity for pregnancy is objective: it does not depend on the employer having known, so it covers the pregnancy even if it had not been communicated. European law on the protection of pregnant workers goes in the same direction.
That does not mean it makes no difference whether you tell them. Communicating it in writing and early:
- Removes the argument over whether the employer knew.
- Triggers other protections, such as adapting the job, time off for prenatal exams and a change of post if there is a risk.
- Strengthens the evidence of possible discrimination if you are treated differently afterwards.
How long the protection lasts
The protection does not end with the birth. The Statute extends it to three moments:
| Stage | Protection |
|---|---|
| From the start of the pregnancy to the start of the suspension for birth | Dismissal void, unless fair for unrelated reasons (art. 55.5.b) |
| During the suspension for birth, adoption or similar | Void (art. 55.5.a) |
| After you return, until 12 months have passed since the birth | Void, also with the exception for fair dismissal (art. 55.5.c) |
In practice, from the first day of pregnancy until roughly a year after the birth, a dismissal has a high risk of being declared void. If you have asked for reduced hours or excedencia (leave of absence) for childcare, the protection also extends to that period.
Types of dismissal and pregnancy
The protection applies to every kind of dismissal:
- Disciplinary dismissal. The employer must prove a serious and culpable offence. A generic letter with vague facts is usually not enough.
- Objective dismissal. The employer must establish the economic, technical, organisational or production cause. In addition, article 53.4 declares void the objective dismissal of a pregnant worker unless the employer proves the cause and that it is not related to the pregnancy.
- End of a temporary contract. If the contract ends by its legal expiry there is no dismissal, but if it is terminated before its date or is not renewed because of the pregnancy, it can be discrimination.
- Probation period. The employer can terminate it, but if it does so because of the pregnancy, it is discrimination. Gather indications: emails, comments, changes in treatment since you communicated it.
What happens if the dismissal is void
When the judge declares nullity, the effect is twofold:
- Immediate readmission, on the same terms you had.
- Payment of the salarios de tramitación, that is, the wages you stopped receiving from the dismissal until readmission (article 55.6 of the Statute).
In a void dismissal the employer has no choice between readmitting and paying severance: it must readmit. And if you were receiving unemployment benefit during the proceedings, what you received is deducted from the back pay, under the general rules.
In addition, some rulings have recognised extra compensation for moral damages when a violation of fundamental rights is shown. It is not automatic: the Supreme Court has pointed out that not every void dismissal of a pregnant worker carries compensation for moral damages, and it depends on sufficient grounds being provided to set it.
An example with numbers
You work on a gross salary of 1,800 euros a month (21,600 a year, about 59.18 euros a day). You are 12 weeks pregnant and are dismissed on 15 October. The ruling declaring nullity arrives on 15 March, five months later.
- Back pay: 5 months × 1,800 euros = 9,000 euros gross, approximately.
- The employer must also readmit you and pay your social security contributions again.
This is an example to visualise the order of magnitude. In reality, income from other jobs or unemployment benefit received is deducted, and the ruling will set the figures. If the dismissal had only been unfair, the employer could choose to pay severance and not readmit you. In a void dismissal it cannot.
What to do in the first days
- Keep the letter or the evidence of the dismissal. If it was verbal, follow the steps in what to do about a verbal dismissal.
- Prove the pregnancy. A report from the midwife or doctor with the estimated start date. If you did not tell the employer, do it now in writing, but do not wait for that before claiming.
- Note the deadline. It is 20 working days from the day after the dismissal, counted as in the deadline to claim a dismissal.
- File the conciliation request as soon as possible: how to request it step by step.
- Apply for unemployment benefit within 15 working days of the termination. It is compatible with the claim.
- Get advice. A union or a labour lawyer can argue nullity more forcefully. Ask for an assessment of the employer’s evidence.
Common cases
I was dismissed in the probation period right after telling them about the pregnancy. This is one of the clearest situations of an indication of discrimination. The employer can terminate the probation period, but if the termination coincides with the notice of pregnancy and there is no other explanation, the dismissal can be void. Keep the date you told them and the date of the termination.
My temporary contract is not renewed. If the contract ends on its date, non-renewal is not in itself a dismissal. But if the employer renews others in your situation and not you, or if they tell you after learning that you are pregnant, there are indications of discrimination. The burden of proof is eased: you provide the indications and the employer must justify its decision.
I am dismissed for objective reasons during an ERE. Pregnancy protection also applies to objective and collective dismissals, and the employer must show that the selection of the people affected is not related to the pregnancy. Ask for the selection criteria in writing.
My job “has disappeared” when I come back from leave. You have the right to return to your post or an equivalent one. If, on the other hand, you are dismissed soon after returning, the protection remains in force for the twelve months after the birth in the cases covered by article 55.5.c.
I am pregnant and on leave for pregnancy risk. A dismissal during that suspension is also void, unless fair for unrelated reasons. In addition, the suspension for risk during pregnancy has its own benefit and protection. Tell the employer and the mutua (the mutual insurance body).
Model message to communicate the pregnancy
Subject: Notice of pregnancy and request for job adaptation
Good morning. I am writing to inform you that I am pregnant, with an estimated due date of [date]. I attach a medical report. Please assess, together with the prevention service, whether my job requires adaptations and tell me how to proceed for medical check-ups and antenatal classes. Kind regards.
It is independent of whether the employer knows for the purposes of nullity, but it triggers the prevention measures and gives you a certain date.
Frequently asked questions
- Do I have to say so at the job interview? No. Asking about pregnancy or plans to have children in a selection process can be discriminatory, and you are not obliged to answer.
- What if I hid it and am dismissed later? Nullity does not depend on you having communicated it, although communicating it helps prove the facts.
- Can I ask to be reinstated even if I already have another job? If nullity is declared, the employer must readmit you. Your income from another job can be deducted from the back pay. Weigh it up with your lawyer or union.
- What if I accepted severance? A signed agreement is hard to undo. Do not sign without advice, least of all for an amount that does not reflect the nullity.
What I would do
First of all, I would copy the medical report and the letter. Then, the same day or the next, I would write to the employer to communicate the pregnancy and say that I consider the dismissal void; not out of legal necessity, but to fix the date. Within a week I would file the conciliation request and book an appointment for unemployment benefit. And I would not accept a settlement with a severance amount without consulting a professional: nullity gives the right to readmission and back pay, and a low settlement can leave you below what you are owed.
Where to go next
For the calculation of what you would receive if the dismissal is declared only unfair, severance for unfair dismissal. And if you already have the letter, what a dismissal letter must contain helps you check it.