IMPROCEDENCIA DEL DESPIDO INEFICAZ DE MUJERES EMBARAZADAS Y EN PERIODO DE LACTANCIA EN EL CONTRATO ESPECIAL EMERGENTE

Abstract

The present investigation reviews the absence of a rule that regulates matters concerning the ineffective dismissal of pregnant or breastfeeding women workers, and its consequences for legal security for both the employer and the worker. The legal doctrine is reviewed, as well as national and foreign legislation, and the judicialized cases on the dismissal of female workers in that condition, who established an employment relationship under the emerging special contract. It is concluded that the regulatory vacuum affects the parties of said relationship equally, but is stronger in the case of the employer who is not certain of the consequences of the unilateral termination of the contract, because while the law says that it is not appropriate, the dismissal is ineffective, judges decide in the opposite direction, or refrain from doing so while waiting for a binding interpretation from the Constitutional Court. While a solution arrives through jurisdictional or legal means, what would be appropriate would be to apply the constitutional principles that govern the right to work, such as the primacy of reality, the special protection of vulnerable people and the job stability of pregnant or pregnant women. lactation period.