More than objective nullity in dismissal for pregnancy: constitutional protection requires compensation for infringement of fundamental rights

Commentary on the Ruling of the High Court of Justice of Madrid 609/2021, of 18 June

Abstract

This important ruling of the High Court of Justice of Madrid is in favour of compensation for damages for violation of fundamental rights in all cases of objective nullity of dismissal due to pregnancy. Based on the recognition that in the dismissal of pregnant women, the protection provided by the legal system has, in any case, a constitutional basis anchored in non-discrimination on grounds of sex, it declares that the objective nullity of the dismissal (legality) must be accompanied by the protection of fundamental rights (constitutionality) and, therefore, by the protection of compensation. Thus, unless the dismissal is declared fair, it will be accompanied by compensation for damages, regardless of whether or not the woman proves the existence of non-pecuniary damages and estimates their amount. Moral damage and its compensation are understood to be implicit in the injury to the fundamental right and this is aimed at compensating for the suffering, uncertainty and anxiety caused to the dismissed pregnant woman. However, the judicial ups and downs in this area have already led to a unification of doctrine by the Supreme Court.