The first CJEU decision on domestic workers: the role of EU equality law in challenging unjustified exclusions from labour rights and social protections

1. Introduction

On 24 February 2022, the CJEU issued its first judgment on domestic workers. In case C-389/20, TGSS (Chômage des employés de maison), the CJEU held that the exclusion of this category of workers from access to social security benefits constitutes indirect discrimination on the ground of sex, since it affects almost exclusively women.

Domestic workers have long constituted an invisible and rather underexplored category of workers within labour law scholarship and policy-making, which has only recently gained some attention in the wake of the adoption of the historic ILO Domestic Workers Convention No. 189 in 2011. Whereas a part of the scholarship has noticed that EU equality law could be used to challenge the long-standing exclusions of domestic workers from national labour law and social security system (see, notably, the contribution of Vera Pavlou, and the work of Nuria Ramos-Martin, Ana Munoz-Ruiz & Niels Jansen in the context of the PSH-Quality project), the issue has never reached the Court of Justice up to now.

With a decision that will become a landmark for domestic workers’ rights in the EU, the Court confirms the untapped potential of EU law in promoting domestic workers’ full coverage under labour law and social security systems, which will have significant implications in the promotion of domestic workers’ rights across the Union.

 2. The CJEU decision

The case originated in Spain in November 2019, when a domestic worker applied for paying contributions to cover the risk of unemployment, in order to acquire the right to the related benefits. However, her request was rejected by the Spanish General Social Security Fund (TGSS) because she was registered in the Special Social Security Scheme for Domestic Workers, which does not include protection in respect of unemployment.

The worker appealed against this decision before the Spanish Administrative Court of Vigo, claiming that the Spanish provision at issue places domestic workers in a situation of social distress in case of involuntary unemployment. This administrative court observed, cleverly, that the provision at issue appeared to have a significant gendered impact, since it affects a category of workers made up almost exclusively of women, thus raising doubts over the compatibility of this provision with EU law. The Spanish Court thus referred the question to the Court of Justice for a preliminary ruling, asking in essence whether the Spanish provision constitutes indirect discrimination on grounds of sex as regards access to social security benefits, contrary to Directive 79/7 on equal treatment in matters of social security.

In answering the question referred, the CJEU first assessed whether the exclusion of domestic workers from protection against unemployment constitutes indirect discrimination on grounds of sex, which occurs when ‘an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex’ (Art. 2(1)(b), Recast Directive). After noticing that it is for the national court to ascertain whether the situation in the present case constitutes indirect discrimination, also based on reliable statistical data (§§42-43), the Court nonetheless pointed out that the exclusion from a social security benefit of a category of workers that is for the great majority composed by women (95.53% of the total workers enrolled to the special scheme for domestic workers in Spain) is capable of placing women workers at a particular disadvantage compared to male workers. Therefore, it is indirectly discriminatory on the ground of sex.

Second, the Court looked at whether the unequal treatment to which the provision at issue gives rise can be justified by objective factors unrelated to any discrimination on grounds of sex. The Court confirmed that the reasons advanced by the Spanish Government and the TGSS for the exclusion of domestic workers from unemployment protection – relating to encouraging recruitment, safeguarding levels of employment, employee protection and reducing social security burdens and costs in order not to incentivise social security fraud and illegal work – reflect legitimate social policy objectives (§57). However, the Court found that the Spanish legislation at issue is not suitable for achieving those social policy objectives and is not necessary for that purpose (§61).

Indeed, the Court noticed that the Spanish provision at issue does not appear to consistently and systematically pursue the social policy objectives declared, since it only concerns the category of domestic workers, whereas other categories of workers whose employment relationship is carried out at home for non-professional employers, or whose working sector presents the same specificities in terms of employment rates, qualifications and salaries of domestic workers, are not excluded from unemployment protection (§63). Similarly, these objectives do not appear to be pursued by a measure that only excludes access to unemployment benefits, leaving domestic workers entitled to other social security benefits, such as risks related to work accidents and occupational diseases, which presents similar risks in terms of social security fraud.

What is more, the Court held that the total exclusion of a category of workers from protection against unemployment is not proportionate, as it appears to go beyond what is necessary to combat illegal work and promote secure employment in the domestic sector. On the contrary, this exclusion contributes to causing a greater lack of social protection and to exacerbating the social distress of domestic workers.

Therefore, the Court concluded that “Article 4(1) of the Directive on the principle of equal treatment for men and women in matters of social security precludes a national provision, such as the Spanish legislation at issue, which excludes unemployment benefits from the benefits granted to domestic workers by a statutory social security scheme, where that provision places female workers at a particular disadvantage over male workers, and is not justified by objective factors unrelated to any discrimination based on sex” (§71).

3. Challenging the “specificity” of domestic work

This case brought before the CJEU is particularly significant, as it offered the Court an important opportunity to reflect upon the special treatment granted to domestic workers within national social security systems.

Indeed, domestic workers, defined by the ILO as those who perform work in or for the private house of their employer, are characterised by the specificity of their workplace, that is the private household of their employer. As extensively analysed in the ILO Report on Decent Work for Domestic Workers, these workers have usually been considered to be in a “special work relationship”, regulated through a set of separate provisions and regulations. The specific approach adopted to address the special features of domestic work has thus led to the widespread exclusion of domestic workers from many labour law entitlements and social security benefits, causing serious gaps in domestic workers’ social and labour protection (a situation defined by Virginia Mantouvalou as “legislative precariousness”), which disproportionally affect women and migrant workers.

Indeed, the specificity of domestic work is not only related to the special location of the workplace in the private household, but it also reflects the traditional devaluation of domestic work, and reproductive work in general, as a traditionally gendered (and racialised) activity. Domestic work, performed most often by women in the household, is thus a type of employment that is so divergent from the standard employment relationship that for a long time states seemed to not have deemed this as “real” work, with detrimental consequences in terms of working conditions and social protection.

Some of these consequences became particularly evident in the context of the pandemic of COVID-19, in which many domestic workers found themselves even more vulnerable to the financial consequences of lockdown and social distancing due to partial coverage under social security systems (as in Germany and the Netherlands, where part-time domestic workers are excluded from social security protection), or also due to explicit exclusion from temporary income support provided in response to the COVID-19 crisis (as in Italy).

Against this background, this judgment appears particularly important because it challenges the “specificity” of domestic work as a justification for depriving domestic workers of labour rights and social security protection.

The Court, indeed, contests the reasoning of the defendant (TGSS) and the Spanish government, which argued that the exclusion of domestic workers from protection against unemployment, and the consequent disproportionate disadvantage suffered by women domestic workers compared to male workers, can be justified due to the “specific characteristics” of the employment relationship of domestic workers. In support of this thesis, the TGSS and the Spanish government invoked a series of arguments frequently used to differentiate domestic workers from the generality of other workers. According to them, the domestic work sector is traditionally particularly sensitive to the burden of social security-related administrative obligations and employment costs, due to a generally low level of qualifications and low salaries in the sector. A significant percentage of workers are not registered in the social security system, and the non-professional nature of their employers, who are most often private families rather than business owners,  makes it difficult to carry out checks and inspections over the conditions for access to unemployment benefits due to the inviolability of the home. Thus, the exclusion of domestic workers from contributions against unemployment risk aims to reduce social security burdens and costs, in order to safeguard employment levels and reduce the risk of illegal work and social security fraud (§§53-54).

In line with the Opinion of the AG Szpunar, the Court rejects these arguments. According to the Court, the category of domestic workers has not been meaningfully distinguished from other categories of workers which are not excluded from protection against unemployment. There are indeed “other categories of workers whose employment relationship is carried out at home for non-professional employers, or whose working sector presents the same specificities in terms of employment rates, qualifications and salaries of domestic workers, such as those of gardeners and private drivers or agricultural workers and workers employed by cleaning companies”, which are however not excluded from protection against unemployment (§63). In other words, the Court considers that the specific characteristics of the domestic work relationship are not relevant enough to justify the full exclusion of only this category of workers from social security benefits, thus challenging the traditional assumptions on the exceptionality of domestic work.

This is in line with the policy approach adopted by the Commission over the last years, which has included domestic workers within the category of those in non-standard forms of employment, along with on-demand workers, intermittent workers, voucher-based workers and platform workers (see the Recital 8 of the Transparent and Predictable Working Conditions Directive). Far from being exceptional, domestic work is considered as part and parcel of an increasingly precarious workforce presumed to be continuously available for the needs of the employer, and extremely flexible about both their working time and workplace. A trend accelerated by the sudden surge in teleworking caused by the COVID-19 pandemic, which has enlarged the number of workers for whom the private household has become their workplace, thus challenging once more the exceptionality of domestic work within labour law and social security systems.

4. Conclusion: the role of EU equality law in promoting domestic workers’ rights

Being the first case on domestic work to reach the CJEU, this decision contributes significantly to give visibility to domestic workers, thus reaffirming that this category of often marginalised workers are entitled to the full array of labour rights and social protection recognised to other workers, in line with the equal treatment approach guiding the ILO Domestic Workers Convention No. 189.

Moreover, by challenging the specificity of domestic work, this judgment stresses that EU equality law can be a promising legal avenue to tackle the long-standing exclusion of domestic workers, well beyond the area of access to social benefits. For example, EU law can contribute to challenge the exclusion of domestic workers from various area of labour law, most notably in the area of working time regulation (as emerges from the last Implementation Report of the Working Time Directive 2003/88/EC).

Therefore, the decision of the Court represents a powerful precedent that can lead the way to strategic litigation to promote the domestic workers’ demands for full coverage within labour legislation and social security systems, with significant implications across Member States.