February 2022 - EU - Court of Justice / Tesorería General de la Seguridad Social (TGSS)

ECLI/ Case No: ECLI:EU:C:2022:120

Authority: Court of Justice EU

Parties: Court of Justice / Tesorería General de la Seguridad Social (TGSS)

Subject: Exclusion of domestic workers from access to social security benefits

Summary of facts: A domestic worker requested access to pay contributions to a scheme that covers the risk of unemployment. Her request was denied by the Spanish General Social Security Fund. Since she was a domestic worker she fell under the scope of a special social security scheme for domestic workers which does not include protection in case of unemployment. The Spanish Court asks the Court of Justice EU whether the Spanish provision that excludes domestic workers from unemployment benefits is in line with art. 4 Directive 2006/54.

Legal question: Does the Spanish provision that excludes domestic workers from unemployment benefits amounts to indirect discrimination based on gender?

Considerations: The Court points out that 95.53% of the domestic workers are women. The exclusion of this profession from a social security scheme allows to put women in a particular disadvantaged position compared to men. Although the reasons brought forward by the goverment, such as encouraging recruitment and protecting the levels of employment, are legitimate. The measure of excluding domestic workers from the scheme is not necessary and proportionate for achieving that purpose.

Ruling: Article 4(1) of the directive precludes a national provision which excludes domestic workers from enjoying unemployment benefits, if that provision places female workers at a particular disadvantage over male workers and is not justified by objective factors.