Spanish regulation discriminates against female domestic workers when it comes to access to unemployment benefits and other social assistance.

Spanish domestic workers are predominantly female. A "special social security system" which does not include unemployment insurance applies to the sector there. As the ECJ has ruled, this regulation constitutes indirect gender-based discrimination.

Social protection of domestic workers in Spain

The employee category of domestic workers in Spain consists almost exclusively of women. They are covered by a "special social security system" that covers various risks but does not include unemployment insurance. The system had been introduced in 2011 with the aim of combating illegal employment and benefit fraud, among other things.

A separate unemployment insurance with the "General Social Insurance Fund", which would be necessary for receiving unemployment benefits, is explicitly not permitted. This exclusion rule is further tightened in scope by the fact that unemployment insurance is also linked to other entitlements to social assistance that are not accessible to domestic workers.

Violation of Union law

As the ECJ has now ruled in its judgement of 24 February 2022 (C-389/20), this regulation constitutes indirect gender-based discrimination. A Spanish administrative court had asked for clarification or interpretation of the Equal Treatment Directive in the field of social security following a lawsuit filed by an affected person against the Spanish General Social Security Fund.

Original objective: to avoid illegal employment and benefit fraud

The justification previously given by the Spanish government for the regulation was not considered justified. Although the ECJ has confirmed the fight against illegal employment and benefit fraud as legitimate social policy objectives, it considers the regulation to be incoherent and therefore, not suitable for achieving such objectives. Thus, the risk of illegal employment would also exist in other employment categories. Furthermore, other social benefits are also affected by the risk of benefit fraud, for which domestic workers as well as other or equivalent employment categories are certainly covered by the system. Last but not least, the impact on other benefit areas further reduces social protection, leading to social hardship. Thus, the regulation also goes beyond what is necessary for its original objective.

The Spanish courts are now to clarify conclusively whether there are other justifications for the regulation.