Pregnant and working in Spain, with risk assessment and dismissal protection

Terms used

• Mutua colaboradora — The mutua colaboradora is a private mutual insurer that manages work-related benefits for many employers' employees.
• INSS — The INSS is Spain's national social security institute, which pays many benefits, including pregnancy-risk benefit.
• Seguridad Social — The Seguridad Social is Spain's public social security system, including its health service and doctors.
• Base reguladora — The base reguladora is the average pay figure used to calculate a benefit.

Key rules

• Risk suspension: Your contract can only be suspended for pregnancy risk when no adaptation or move to a compatible job is possible.
• Benefit: The risk-during-pregnancy benefit is 100% of your base reguladora.
• Prenatal time: Prenatal exams and preparation classes during working hours are paid time off.
• Dismissal: A dismissal during pregnancy is automatically null unless your employer proves it is fair and unrelated.

Your employer must assess the risks of your job

Once you are pregnant, your employer must assess whether your job puts you or the baby at risk. Tell your employer in writing that you are pregnant and ask for the assessment.

If there is a risk, your employer must change your conditions or hours. This includes taking you off night work or shift work.

If your job cannot be adapted, you move to another job

If adapting your own job is not possible, you must be moved to a different job or function that is compatible with your condition. You keep your pay. Your employer should look first within your group or category, and in another group only if nothing else works.

If no change is possible, your contract is suspended

Only when no adaptation or move is possible can your contract be suspended for risk during pregnancy. The steps are:

1. Your employer gives you a certificate saying no adaptation or change of job is possible.
2. You apply for the risk-during-pregnancy benefit to your mutua colaboradora. If the INSS covers your employer's work-related risks, apply to the INSS instead.
3. You attach a report from a doctor of the Seguridad Social.

The benefit is 100% of your base reguladora, calculated on work-related risks. It lasts until your birth leave starts, or until you can return to your job or another compatible one. Forms and procedure vary by mutua, so ask yours what it needs. Self-employed workers can also claim this benefit.

You get paid time off for prenatal care

You can take paid time off, within working hours, for prenatal exams and childbirth preparation classes that must happen during your working day. Tell your employer in advance and show proof, usually a medical certificate or appointment note.

Your partner has the same right for preparation classes. In adoption or fostering, it covers the compulsory information and preparation sessions and the psychological and social reports.

You are protected from dismissal

A dismissal is automatically null, meaning treated as if it never happened, in these cases:

• You are pregnant, from the start of the pregnancy until your birth leave begins.
• You are on leave for birth, adoption, fostering or breastfeeding risk, or you were notified of dismissal after asking for such leave.
• You are on other permitted leaves, such as childcare or family care leave, or reduced hours for care.
• You have returned from these leaves, for 12 months after the birth, adoption or fostering.

The only way out for your employer is to prove the dismissal is fair and has nothing to do with your situation. Otherwise it is null, not just unfair, which is a stronger result for you. Exact periods depend on the type of leave, so check them with a labour lawyer or union.

If you are dismissed, keep written proof of the dismissal and the date you were told. The sections below cover what to do next.

Timeline and deadlines

• Dismissal protection starts: a dismissal is automatically null: from the start of pregnancy until your birth suspension begins

• Dismissal protection continues during birth, adoption or fostering leave and the other permitted leaves: from the date you give notice of the leave request, and during the leave

Documents you need

• Employer's certificate stating that no adaptation or change of job is possible, issued by your employer, needed to apply for the risk-during-pregnancy benefit.

• Medical report from a Seguridad Social doctor, needed with your benefit application to your mutua or the INSS.

• Medical certificate or appointment note showing that a prenatal exam or childbirth class must take place during working hours, given to your employer to claim paid time off.

Checklist

• Ask your employer to assess the risks of your job to you and the baby.

• Ask for adapted conditions or hours, including removal of night or shift work, if a risk exists.

• Ask to be moved to a compatible job on the same pay if adapting your own job is not possible.

• Ask your employer for a certificate saying no adaptation or change is possible, if that is the case.

• Apply to your mutua or the INSS for the risk-during-pregnancy benefit, with the certificate and a medical report.

• Keep written proof of any dismissal and the date you were told, as a dismissal during pregnancy is automatically null.

What if I am dismissed while pregnant or on leave?

A dismissal while you are pregnant or on a protected leave is treated as null, not just unfair. Null means your employer must take you back on the same conditions and pay the wages you missed. You have to act fast, though: the time limit is short.

When the special protection applies

The protection covers you if you are dismissed:

• during birth, adoption, fostering or similar leave;
• from the moment you give notice that you are asking for one of these leaves;
• after using your rights as a victim of gender violence or terrorism, such as reduced hours, relocation or suspension of your contract;
• in retaliation for a complaint or legal claim, or for discrimination, including on grounds of health or sexual orientation.

The exact periods depend on the type of leave. A labour lawyer or union can tell you which one fits your case.

In the protected cases, your employer can only avoid nullity by proving the dismissal has nothing to do with your situation. If they cannot, it is null.

What you get if the dismissal is null

• Your employer must take you back straight away, on the same conditions as before.
• Your employer must pay your wages for the whole period from the dismissal to your return.
• Your employer must pay your social security contributions for that period, and you stay registered as working.
• If your fundamental rights were violated, the court can also award damages, including for moral harm. The court sets the amount.
• If your employer refuses to take you back, you can ask the court to enforce the ruling. The court can end the contract and award you compensation.

What to do now

You must challenge a dismissal within 20 working days of it taking effect, starting with a conciliation request. Weekends and holidays do not count, but August does.

1. Keep your dismissal letter and any messages about your pregnancy or leave. Note the date the dismissal took effect.
2. File a conciliation request with your region's conciliation service. This counts as challenging the dismissal within the deadline, and it pauses the clock.
3. Expect the clock to restart after the conciliation hearing, or after 15 working days, whichever comes first.
4. If conciliation fails, file your claim at the labour court (juzgado de lo social).
5. Speak to a labour lawyer or union straight away. The deadline is strict, and a claim filed late is lost.

Do not sign any settlement or leaving document before you have had advice. Signing can weaken your claim.

Frequently asked questions

What happens if my job cannot be made safe while I am pregnant?

Your employer must first adapt your conditions or hours, then move you to a compatible job on the same pay. Only if neither is possible is your contract suspended for risk during pregnancy. The benefit is 100% of your base reguladora (your regulatory pay base) and lasts until birth leave begins, or until you can return to your job or a compatible one.

Who pays me during a risk suspension and how do I apply?

Your mutua colaboradora (a private body that covers work-related risks) pays the benefit, or the INSS if it covers your employer's contingencies. Your employer issues a certificate saying no adaptation or job change is possible. You apply with that certificate and a medical report from a Seguridad Social doctor.

Can my partner also get paid time off for childbirth preparation classes?

Yes, the other parent has the same paid leave within working hours for preparation classes. Tell your employer in advance and show proof that the class falls in working time. In adoption or fostering the right covers mandatory information and preparation sessions.

Am I still protected from dismissal after I return from birth leave?

Yes, a dismissal during the 12 months after birth, adoption or fostering is automatically null for workers returning from these leaves. Null means the dismissal is cancelled, not just unfair. The same protection covers dismissal from the start of pregnancy until your birth suspension begins.