Continuing with our special on Work and Pregnancy, today we are going to differentiate how pregnancy and maternity leave affect the different social security affiliation regimes and different variants of labor relations that may exist between the company and the worker.
Officials and public employment
A priori, the most favorable situation that a pregnant woman can have part of a job in the Public Administration obtained through competition-opposition. In this case, an official is not governed by the Statute of ordinary Workers, since it is governed by the Statute of the Public Employee; legal regulation that extends the coverage of the pregnancy situation in all aspects, both in periods of maternity leave and in periods of risk for pregnancy and lactation. The employment relationship between a civil servant and the public administration that the contract is indefinite and You can never lose your job due to pregnancy reasons. Let us think of any type of administration or body with public ownership that access to the position has been through a contest-opposition.
However, not all labor relations of public administrations are governed by this figure of public employee, since it is becoming fashionable labor hiring of the administration for a fixed or indefinite period. These types of positions are open access or free designation positions, depending on the administrative procedure that has been followed for hiring but are comparable to the existing regulation on labor matters for companies in the private sector.
Private employment and type of employment contract
As we see, an ordinary employment contract with an administration is comparable to an employment contract with any type of company. At this point, we must discern the type of contract that supports the labor relationship between the company and the worker to determine the rights and obligations of both parties. Assume two standardized situations: * Indefinite contract; such as the situation where there is no place for dismissal for reasons of pregnancy, maternity leave, leave of absence ... Any dismissal that takes place in a worker with an indefinite contract during the period of pregnancy, childbirth or breastfeeding will be classified as void by the judicial authority, unless the company perfectly argues the grounds for dismissal for breach of the internal regulations or very serious offenses by the worker. * Temporal agreement; situation whereby, the termination of the contract during pregnancy, maternity leave or breastfeeding period is a valid cause of interruption of the employment contract. On the other hand, if the company decides to dismiss early before the end of the contract, this dismissal would also be qualified as void by the competent labor court. The complex dilemma originates with the indefinite contract, given that in the case of temporary contracts, The usual practice by companies is not to renew the contract and terminate the employment relationship at the time the contract ends.
Even so, a very common practice in many companies is the transition from one company to another of the worker chaining temporary labor contracts in order to avoid indefinite hiring. Imagine any company that has two companies that engage in the same activity; such that Sociedad 1 SL and Sociedad 2 SL.
The usual mechanism is to make temporary contracts for one year in each of the aforementioned companies, with the particularity that the worker is always in the same job. If the worker becomes pregnant, the contract is not renewed in the last company where she was registered.
This assumption is law fraud and the non-renewal of this temporary contract would be automatically invalidated by any judge by ruling that the real contractual relationship between the company and the worker is an indefinite contract. In these cases, the complaint by the worker must be immediate if the non-renewal of the contract by the company is notified.
Freelancers and pregnancy
This is the worst situation of all possible, given that the figure of company and worker coincides with the same person to such an extent that in the case of dependent autonomous workers or autonomous workers of the agrarian regime they have to communicate which person is registered to continue to lead the activity.
In these cases, there is no possibility of dismissal, but the coverage of economic benefits by social security is greatly diminished, since substitution by a worker is always required in the figure of the self-employed person in the case of the existence of leave by risk for pregnancy.
In the next post we will discuss the chapter on prevention of occupational hazards, sick leave due to pregnancy and rights and obligations of the company and the worker affected in these situations.
