I- THE EXPONENTIAL GROWTH OF OUTSOURCING.
It is well known that the 2012 labor reform gave prevalence -art. 84.2 ET- to local collective bargaining, that is, to company collective agreements versus sectoral ones. In various sectors of activity, especially in those intensive in labor and lower professional qualification, among which the hotel sector stands out, such a clear competitive advantage has translated into an increase in outsourcing and subcontracting processes of services and entire departments, being especially known the case of the cleaning ladies. The regulatory change has proven, therefore, decisive, in a good number of hotels, of the organizational change: it is promoting the gradual replacement of personnel hired directly by others hired indirectly, particularly through the so-called "multiservice companies". The most immediate consequence has been the precariousness of the working conditions of the "indirect personnel" in all these sectors, especially in those where they had more favorable conventional breeding grounds, as is the case of the "welcoming" collective agreement of the hospitality sector, so that doing the same work, a lower salary is perceived, sometimes significantly lower.[1]
This new productive strategy has the immediate effect of polarizing the workforce, devaluing the principle of equality in the same workplace and the large differences between the legal statutes of core and peripheral workers, this impact being more harmful in those more vulnerable and historically discriminated groups, for reasons of gender, disability, age...
II-"KELLYS" VERSUS MULTISERVICE COMPANIES.
Hospitality has historically been a very representative sector of labor segregation, based on sex. The functions of conditioning rooms and cleaning have always been performed by women[2] and in the same way the salaries paid to them have been occupying the lowest positions in the salary tables, at a distance from other less feminized ones, of similar characteristics (restaurant or bar sector, for example).
In recent years there has been an increase in the processes of outsourcing and subcontracting of certain hotel departments, especially the floors and cleaning department, and in many hotels the own staff has been replaced by other external staff, from multiservice companies. The consequences of this change have made the working conditions of the affected workers more precarious, doing the same work in exchange for a lower salary[3]. Also, labor rights of the sector are lost, such as the right to breakfast or lunch, signing employment contracts normally temporary and in many cases, part-time to gain flexibility through the use of so-called "supplementary hours". All this means, in short, a significant reduction in personnel costs that allows multiservice companies to offer a very attractive product in exclusively economic terms.
However, the labor damages derived from the decision of the main company to outsource, must be judged very differently when they are projected on a group of people belonging to vulnerable groups, for being susceptible to discrimination, as happens with the group of room maids or cleaners (mostly women) because in such cases the so-called "reinforced canon" (SSTC 92/2008, 84/2001 and 28/2005) should be applied because it is a case in which the fundamental right to non-discrimination, based on sex, is at stake.
In these cases, a double judgment must be made, the one of legality according to the labor regulations applicable to the case (arts. 42 and 43 of the ET), and the judgment of constitutionality with respect to the indicative discrimination based on sex (art. 14 CE), since any unfavorable business decision that affects a group composed (mostly) of women is a discriminatory indication. This judicial methodology designed by the jurisprudence of the EU and by the TC, allows to detect indirect discriminations that are the most abundant discriminatory modality in our century and also makes visible those opaque or undervalued discriminations, that in many occasions appear buried under stereotypes and prejudices trivialized in a society that has only been able to conquer, until now, formal equality.
Article 6.2 of the LO 3/2007, defines the concept of direct discrimination: "Art. 6-Direct and indirect discrimination: (...) Indirect discrimination based on sex is considered to be the situation in which an apparently neutral provision, criterion or practice puts persons of one sex at a particular disadvantage with respect to persons of the other, unless such provision, criterion or practice can be objectively justified in view of a legitimate aim and the means of achieving that aim are necessary and appropriate."
Article 2.1 b) of Directive 2006/54 EEC (recast), of July 5 for the application of the principle of equal opportunities and equal treatment between men and women in matters of employment and occupation, defines indirect discrimination based on sex with identical wording.
The Judgment of the Constitutional Court No. 253/2004 clarifies that:
"(...) when indirect discrimination is denounced, it is not required to provide as a term of comparison the existence of a more beneficial treatment attributed solely and exclusively to men; it is enough, as both this Court and the Court of Justice of the European Communities have said, that there is, first, a rule or an interpretation or application of the same that produces unfavorable effects for a group formed mostly, although not necessarily exclusively, by female workers (part-time workers - STJCE of June 27, 1990 -, workers with less than two years of permanence in their job - STJCE of February 9, 1999 -, workers with less physical strength - STC 149/1991- etc.). In these cases it is evident that when it is concluded that, for example, a specific treatment of part-time workers discriminates against women, it is not being said that in this same labor situation men are treated better than women. And, secondly, it is required that the public authorities cannot prove that the rule that dispenses a difference in treatment responds to a social policy measure, justified by objective reasons and unrelated to any discrimination based on sex (for all, SSTJCE of December 14, 1995, case The Queen v. Secretary of State for Health; of March 20, 2003, case Jorgensen, and of September 11, 2003, case Steinicke). In short, in these cases, in order for the right and anti-discrimination mandate enshrined in art. 14 CE to be considered violated, there must be a different and detrimental treatment of a social group formed in a clearly majority way by women, with respect to relevant goods and without there being sufficient constitutional justification that can be contemplated as a possible limit to the aforementioned right.(...)"
Article 17 of the Workers' Statute establishes: "Regulatory precepts, clauses of collective agreements, individual pacts and unilateral decisions of the employer that give rise in employment, as well as in matters of remuneration, working hours and other working conditions, to situations of direct or indirect discrimination unfavorable on grounds of age or disability or to situations of direct or indirect discrimination on grounds of sex shall be null and void..."
Therefore, for indirect discrimination based on sex to exist, these conditions must be met:
1.- A specific business provision, decision or practice.
2- That it is apparently neutral, that is, that it has no discriminatory intent. (For example, a collective dismissal for objective reasons of the workers of floors and cleaning, to outsource it).
3.- This provision, decision or practice must cause a particular disadvantage with respect to people of the other sex. (The contractual termination, for example, is a clear disadvantage or damage).
4.- And that the provision, decision or practice lacks objective justification, legitimate purpose and the means to achieve that purpose are not necessary and adequate. In addition, if there are other alternatives to achieve a purpose that do not fall on discriminated "groups" (women), they should be applied preferably.
When the first three conditions are met, there is a presumption of indirect discrimination (suspicion of discrimination). By definition, in matters of indirect discrimination, the intention of the author is not taken into account, only the result counts (Judgments of the CJEU of March 31, 1981, Jenkins Case, 96/80 and of May 13, 1986, Bilka Case 170-84).
The fourth of the conditions is usually the most difficult to identify, due to the social influence of stereotypes and sexist prejudices that in many cases hinder the work of imparting equal justice.
To be admissible, the justification must meet the following requirements:
- Have an objective justification disconnected from all discrimination.
-Pursue a legitimate purpose connected with the objective justification.
-That the means used are necessary and adequate, that is, that the employer's choice in the means used are the most suitable and appropriate to achieve the objective pursued.
Based on the above, when the company makes an outsourcing decision that has an adverse gender impact, projected on feminized professional categories, it will be up to the employer, by the institute of the reversal of the burden of proof and the "reinforced canon", to justify the constitutional legitimacy of the measure adopted, in addition to the legal-labor legality of the decision. This judicial analysis will allow to detect if we are, or not, facing an indirect discrimination and bring to light those opaque or undervalued discriminations, thus avoiding incurring in a stereotyped or prejudiced justice. (STJUE of March 28, 2000, Kathleen Hill Case).
The principle of effective equality between women and men requires the integration of the gender dimension in the application of all norms (judging with a gender perspective), whether they are procedural norms, including evidentiary norms, or substantive norms.
Article 4 of the LO 3/2007, on Effective Equality between Women and Men, whose heading is "integration of the principle of equality in the interpretation and application of the norms", supposes the concretion of the principle and of the fundamental right to effective equality.
The Judgment of the Constitutional Court 216/1991, of November 14, states: "the equality that art. 1.1 of the Constitution proclaims as one of the superior values of our legal system -inherent, together with the value of justice, to the form of Social State that this system embodies, but also to that of a State of Law- is not only translated into that of a formal character contemplated in art. 14 and which, in principle, seems to imply only a duty of abstention in the generation of arbitrary differentiations, but also in that of a substantial nature collected in art. 9.2, which obliges the public authorities to promote the conditions so that that of individuals and groups is real and effective". And, in relation to the LOIMH, STC 12/2008, of January 29 (RTC 2008, 12), points out that "art. 9.2 CE expresses the will of the constituent to achieve not only formal equality but also substantive equality, being aware that only from that substantive equality is the effective realization of the free development of personality possible; therefore, the constituent completes the negative aspect of proscription of discriminatory actions with the positive one of favoring that material equality".
III- CRITICAL ANALYSIS OF THE JUDGMENT OF THE SUPREME COURT OF NOVEMBER 20, 2015[4] (Case of the maids of the Hotel Meliá). The Supreme Court had the opportunity to analyze the gender impact of the outsourcing of the work of the floors and cleaning sector of the Meliá Barajas and Tryp Alameda hotels (both 4-star hotels), after a collective dismissal for productive and organizational reasons, of its own staff of room maids and cleaners (a total of 52 people dismissed[5], and among them only three were men). In the lawsuit filed by the legal representation of the affected workers, they requested as the main request the declaration of nullity of the dismissal, for different reasons, but among them, it included that of indirect discrimination based on sex (art. 14 CE).
The Superior Court of Justice of Madrid, in its judgment of November 19, 2014 (No. 970/2014), dismissed the lawsuit, declaring the collective dismissal adjusted to law, for organizational reasons, dismissing the request for nullity for sex discrimination, because having proven the decrease in occupied rooms "this is the focus where the reason for adopting decisions is found that allow to overcome this situation and not in the fact that the group that attends it is of one sex or another..."
The High Court dismissed the appeal for cassation filed against the judgment of the instance and in relation to the allegation of discrimination based on sex was discarded through the application of the so-called "but for" test, or the substitution consisting of changing the sex in the compared situation, to verify if the legal consequences would have been the same, that is, if the dismissal would have occurred if the sex had been different, the Court reaching the conviction that in the analyzed case:
"(...) there is no pejorative treatment of women because the decision to outsource cleaning services is unrelated to the sex of the affected workers, as it has been taken for objective reasons, related to a better organization of the service that, in addition, would result in a reduction of costs and not with the purpose of dispensing with female workers. The decision to outsource, whether or not adjusted to law, which will be seen later, would have been taken equally if all those affected were men, which applying the "but for" test leads us to conclude that it is unrelated to any indirect discrimination prohibited by law (...)"
From my point of view, the previous analysis departs through a simplistic interpretation of the concept of indirect discrimination defined extensively, by the jurisprudence of the Court of Justice of the European Union, and followed by our Constitutional Court in the terms exposed, as recalled in the dissenting opinion of this media sentence.[6]
In this case, it is evident that the decision to outsource exclusively the feminized professional categories of the Meliá and Alameda Hotels (cleaners and room maids), impacts on a group mostly of women compared to other non-feminized sectors or categories such as bar, kitchen, reception or maintenance staff, the Court not having analyzed the legitimacy and justification of the business decision to outsource only the group of room maids and cleaners compared to other mixed professions. It is not a question of assessing the reasonableness of the organizational cause in itself but its projection with respect to an exclusively female group (and historically discriminated and affected by a wage gap that is also projected in the perception of pensions), compared to other professional categories (not segregated) that would also entail a decrease in economic costs and a productive improvement. However, in the account of proven facts, nothing more than the economic data relating exclusively to the rooms of the hotels and the workers finally dismissed is contained, but no reference is made to economic or productive data corresponding to other professional categories different from those affected, which is why the necessity and adequacy of the means used to achieve the end is not proven. As for the damage that the outsourcing will entail for the affected workers, it is clear through the extinctive decision falling on an overwhelming female majority. And the decision is not justified by the reduction of costs and the better position of the company in the market, as this would also have been achieved by outsourcing other non-feminized professional categories.[7]
IV- CONCLUSIONS.
Multiservice companies are currently proliferating, driven by the crisis and supported by the 2012 labor reform, penetrating strongly in sectors such as hospitality, where they have no competition by offering the same work with their own staff and lower salaries. This generates in many cases a highly unequal situation that makes working conditions precarious, circumventing not only the application of the rules set in the sector's agreement, and therefore, collective bargaining, but also the mandatory rules required for Temporary Employment Companies (ETT).
The decentralization, in addition, in the hospitality sector has an unquestionable gender impact, when it affects historically feminized professions, such as room maids or cleaners, within economically booming hotels. Professions, in many cases, subjected to arbitrary criteria, in terms of workload, which now suffer a new scourge of precariousness through conventional banishment.
This new precariousness of an already precarious group, such as that of room maids, has had as a positive counterpart the spontaneous mobilization and organization of the workers of the floors departments in the group of "Las Kellys", the women who clean the hotels, from where they have echoed socially in the vindication of their labor rights against the work overload, excessive working hours or the absence of health protection measures.[8]
Gloria Poyatos Matas, Specialist Magistrate TSJ Canarias
[1] See more specifically my work "Outsourcing in the hospitality sector and gender impact: Las Kellys versus multiservice companies" RTSS CEF, No. 409 (April 2017).
[2] In the old Labor Ordinance for the Hospitality Industry (BOE No. 60 of March 11, 1974), the professional categories of cleaner, darner, laundress, ironer, linen maid, laundress or seamstress only included the female version and although there was next to the category of room maid, also another of "room waiter", it is true that the functions of the waiters were not equivalent to those of the maids and were limited to preparing the luggage of the clientele or other complementary tasks.
[3] "(...) one of the effects most felt by workers hired through multiservice companies is the decrease in their salary that when passing from the hospitality agreement to a cleaning or company agreement, can be reduced between 30% and 40% (...) CAÑADA,E. "Outsourcing of Work in Hotels. Impact on the Floors Department",(p. 86), Alba Sud Editorial, 2016.
[4] Judgment of the Supreme Court, Social Chamber, of November 2, 2015 (ROJ STS 5791/2015)
[5] Although the judgment of the Supreme Court refers to a total of 52 people dismissed, but in the account of proven facts of the Judgment of the TSJ of Madrid dated November 19, 2014 (JUR 2015/1727) appealed refers to the dismissal of 43 people (23 women and 2 men in the Hotel Meliá Barajas and 17 women and 1 man in the Hotel Tryp alameda- proven fact ninth) )
[6] Dissenting Vote signed by the Excma. Sra. Doña Rosa Maria Viroles Piñol
to which the Excmos. Sres. Magistrates D. Fernando Salinas Molina,
Doña Maria Luisa Segoviano Astaburuaga, and D. Jordi Agusti Julia adhere.
[7] See more specifically my work "Outsourcing in the hospitality sector and gender impact: Las Kellys versus multiservice companies" RTSS CEF, No. 409 (April 2017).
[8] See more specifically my work "Outsourcing in the hospitality sector and gender impact: Las Kellys versus multiservice companies" RTSS CEF, No. 409 (April 2017).
Published by JpD Social Commission