By: Norma Villalobos
Associate – LatinAlliance El Salvador
During her gestation period, the working woman is concerned about the health and well-being of her baby, but she is also concerned about her own well-being and maintaining her optimal work performance during that period, since on many occasions, this condition as a pregnant woman causes her a decrease in their work activities due to the symptoms of pregnancy, causing the employer the need to take additional measures to prevent occupational hazards, monitoring the health of their worker and some improvement in the physical conditions of the workplace, to guarantee the happy term and birth of the child.
However, sometimes it happens that either for reasons beyond the control of the pregnant worker, or for causes motivated by the breach of her labor obligations, the employment relationship wears out and becomes unsustainable in the Work Center; So in this circumstance the question arises: Is it legal to fire a pregnant woman?
Before answering this question, it is important to be clear that various International Treaties have the purpose of defending the individual rights of workers, and in the particular case of working women, the Convention on Discrimination in Employment and occupation, which entered into force on June 15, 1960, which seeks to avoid discrimination for any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national descent or social origin that has the effect of nullifying or alter equality of opportunity or treatment in employment and occupation.
Regarding Salvadoran domestic legislation, there is direct protection for the labor rights of pregnant women to protect the job stability of a pregnant worker, preserving the health of the woman and the product during the gestation and lactation periods. .
As for guaranteeing job stability and maternity benefits, this protection is given by Article 43 of the Constitution of the Republic; so that there is a prohibition that they can be dismissed until they have given birth and the post-natal rest to which they are entitled by law has elapsed.
Post-natal rest or maternity rest, in El Salvador is 16 weeks, equivalent to four months, as maternity rest, ten of which will be taken obligatorily after childbirth; and furthermore, the employer has the obligation to pay in advance a benefit equivalent to seventy-five percent of the basic salary during said leave.
In the sense of protection of the labor stability of the pregnant woman, the Labor Code establishes in its Art. 113 that: "From the beginning of the state of pregnancy, until the end of the post-natal rest, the dismissal in fact ... will not it will produce the termination of the contract of the working woman, except when the cause of these has been prior to the pregnancy; but even in this case, its effects will not take place until immediately after the rest mentioned above has ended”.
From the foregoing it can be deduced that job stability in the case of women during pregnancy and postnatal rest consists in the fact that the worker in such a case You cannot be dismissed, not even for a justified cause committed before or during the period covered by the protection.
Notwithstanding the foregoing, the Constitutional Chamber of El Salvador (Unconstitutionality 26-99 of 30/04/2002), has recognized that: "it is not possible to force the employer to keep a person who does not it is of your trust, whether for justified cause or not”; and therefore, there is the possibility of dismissal, but in that case, the employer is obliged to grant the worker the wages to which she would be entitled, as the contract is in force.
In response to the question that we posed at the beginning, we must mention that despite the fact that there is constitutional protection for the right to job stability for pregnant women, Salvadoran legislation provides for the possibility of dismissal and establishes the legal consequence that consists in the fact that the employer is obliged to recognize to the worker the wages at which she would have right from the beginning of pregnancy until the end of the postnatal leave (16 weeks equivalent to four months for maternity leave).
The enjoyment of the wages to which the worker is entitled to enjoy during the time in which the period of her job stability lasts due to maternity, is additional to the severance pay for dismissal and other benefits that are owed to her at the time of giving the employment relationship is terminated, as would be calculated for any other worker who is dismissed without just cause.
Because of the job stability guarantee that pregnant women enjoy, and because of the economic cost that breaking it represents, in most cases employers wait for the postnatal leave to be completed to terminate the employment relationship with the worker.