Labour rights are to be extended to this large, female—and largely informal—sector.
In Spain in 2011, a royal decree updated regulation of the special employment relationship of domestic workers. It paved the way for ratification of the International Labour Organization Domestic Workers Convention (no. 189) of that year.
While this enhanced the labour and social-security rights of domestic workers, in two areas equality was still denied: compensation for unfair dismissal and protection against unemployment. The former was substantially lower than that for other employees and domestic workers had no right to protection against unemployment.
According to the latest data from the Working Population Survey, there are 545,700 domestic workers in Spain, 89 per cent of whom are women. The latest figures on social-security contribution would however indicate 368,848 (95 per cent female). The discrepancy reflects the extent of informal employment in the sector.
More than a decade on, the royal decree-law which the Council of Ministers has just approved ensures that domestic workers will finally enjoy the same rights as other employees. The fact that most of these workers are women means it represents an advance for gender equality in the labour market.
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The new law
Under the new law, if domestic workers are dismissed and their dismissal is deemed unfair (unjustified), the compensation will be 33 days of their wage for each year of service—not 20 days as before. ‘Objective’ reasons are now delimited, according to which the employment contract can legitimately be extinguished: a decrease in income of the family unit, a change in the family’s needs or ‘behaviour by the worker that reasonably and proportionately substantiates the loss of trust by the employer’. In these three cases, the compensation will remain at 12 days of the wage for each year of service, but the reasons are significantly restricted, especially the last.
Previously, an employer could freely withdraw from the employment contract on the basis solely of having lost trust in the person employed in their home. Now this is only possible when there is behaviour which could ‘reasonably and proportionately’ be understood as causing such a loss of trust.
Finally, the Wage Guarantee Fund (Fondo de Garantía Salarial) will pay the dismissal compensation of domestic workers whenever the employer would be insolvent. This it does for all companies.
In February this year, the Court of Justice of the European Union deemed the lack of protection against unemployment for domestic workers in Spain to constitute indirect discrimination against women. Under the decree, this right to protection is now recognised.
The scheme is the same as for all other workers, with no special feature beyond a discount of 80 per cent in the unemployment contributions which the employer will have to pay. This is a very important incentive, so that family units do not perceive the payment of such contributions as an increased cost of the work in their home, and therefore the new regulation should not lead to a loss or flatlining of employment in this sector.
Complementary provisions
Two measures complement the new law. The first safeguards the health and safety of domestic workers. The Occupational Risk Prevention Law of 1995 had excluded these workers from its scope of application. Now it is expressly recognised that ‘workers have a right to effective protection regarding occupational health and safety, especially within the scope of preventing violence against women’.
The second measure relates to those who work fewer than 60 hours per month as domestic workers. In this regard, one of the features of the 2011 decree has been recuperated, mandating that employers pay the social-security contributions of workers regardless of hours worked (this had been removed in 2012).
From 1 January 1st, employers will, just like companies, once again be responsible for assuming the obligation to register for social security and pay the corresponding contributions for domestic workers. The purpose of this measure, above all, is to make informal employment formal and legal—something especially necessary in this sector.
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A Spanish version of this article appeared in The Conversation
Luz Rodríguez is professor of labour law at the University of Castilla-La Mancha. Her latest books are Plataformas Digitales y Mercado de Trabajo (2019) and Tecnología y Trabajo: el impacto de la revolución digital en los derechos laborales y la protección social (2021).