They dictate rules for the nullity processes of dismissal due to pregnancy




Judges of all instances must take into account these mandatory provisions regarding evidence in these trials.


The Supreme Court of Justice established as mandatory jurisprudential doctrine the rules that the judges of all instances must take into account regarding the evidence in the processes of annulment of the dismissal due to motives originating in the pregnancy of the workers.

In these processes, it is up to the judges to presume that the dismissal has had pregnancy as a motive when it occurs in the gestation period or within 90 days after childbirth, details the sentence handed down in Labor Cassation No. 30535-2019 Lima issued by the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court of Justice.

At the same time, they must take into account that it is not necessary for the worker to notify the employer in writing of her status as a surrogate mother. This is in line with the provisions of Convention No. 183 of the International Labor Organization (ILO) on maternity protection.

As a rule, it is also established that the employer has the burden of proof of just cause for dismissal when it occurs during the gestation period or within 90 days after delivery.

In addition, in the case of pregnant workers fired during the trial period, without just cause, the judge must presume that the motive for the dismissal was pregnancy, adds the sentence.

The supreme court sets these four rules taking into account that the first paragraph of article 23 of the Constitution states that the State especially protects working mothers.


ILO Conventions

It also bases its decision on the provisions of article 8 of the ILO Convention No. 183 on maternity protection, approved by Legislative Resolution No. 30312, which prohibits the employer from firing a woman who is pregnant, except for reasons that are not are related to pregnancy, the birth of the child and its consequences or breastfeeding.

In this context, said article states that the employer bears the burden of proof that the reasons for the dismissal are not related to those circumstances and that the woman is guaranteed the right to return to the same job or to an equivalent job with the same remuneration, at the end of the maternity leave.

The collegiate also warns that although the ILO Convention No. 158, on the termination of the employment relationship, has not been ratified by Peru, it serves as a guide for the judge.

Article 5 provides that among the reasons that will not constitute just cause for termination of the employment relationship is pregnancy.



Likewise, the Supreme Chamber takes note of the ruling of the Constitutional Court (TC) issued in File No. 05652-2007-PA/TC insofar as it refers to labor discrimination and the ruling of the highest interpreter of the Constitution corresponding to File No. ° 2748-2021-PA/TC, which due to temporality only serves as an orientation guide. The Supreme Court also warns that the correct interpretation of subsection e) of Article 29 of D.S. No. 003-97-TR.

According to that sentence, in all dismissal of a worker during the gestation period or within 90 days after childbirth, it is presumed that the dismissal is due to pregnancy if the employer does not prove the existence of just cause for dismissal, or if the dismissal sanction imposed does not meet the criteria of reasonableness and proportionality.

Consequently, it is specified that pregnant or recently maternity workers who fail to comply with their work obligations may be dismissed by their employers, without responsibility for them, after complying with the procedure established by law, when they intentionally commit a serious misconduct. in article 25 of the Single Ordered Text (TUO) of Legislative Decree No. 728, approved by Supreme Decree No. 003-97-TR.


Case under analysis

In the case that is the subject of the judgment handed down in Labor Cassation No. 30535-2019 Lima, a worker files a lawsuit requesting that the dismissal to which she was subject be declared null and void due to her pregnancy and, therefore, that she be reinstated in his job and the defendant entity is ordered to comply with paying him all the remuneration not received since his dismissal.

At the same time, it requests the recognition of an employment relationship for an indefinite term, since the service lease contracts and the administrative service contracts (CAS) signed with the defendant, plus costs and expenses, and the respective legal interests have been distorted.

The first and second judicial instances declared the claim partially founded, for which the worker filed an appeal.

Upon hearing the matter and based on the aforementioned rules, the Supreme Chamber declared the appeal filed by the plaintiff within the ordinary dismissal annulment process and another that she initiated well founded.



With this ruling of the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court of Justice, both in the labor and constitutional spheres, the maternity jurisdiction is recognized, which protects all pregnant workers regardless of having informed the employer her state of pregnancy, commented the labor lawyer Elmer Huamán, a partner at Lazo, De Romaña & Bravo Abogados.

Even, he said, protection is granted on a trial period to the pregnant worker. Therefore, he argued that in these cases there will be a reversal of the burden of proof for which it is up to the employer to demonstrate a just cause for dismissal. If not, the dismissal will be presumed null, which implies the replacement of the worker, the payment of accrued earnings and even the payment of compensation for non-material damage, the specialist specified.


Source: The Peruvian


Fuente: El Peruano

share by

keep informed