The incidence of restraining orders in the employment relationship of an active subject of gender violence victims

In the case of that LO 1 / 2004, the standard has come to establish measures for working women. Specifically, in Chapter II of Title II, entitled Generic Women's Rights, and later under the heading Employment rights and Social Security benefits.

Based on the current regulation, it is noteworthy that the LO 1 / 2004 has been to establish that if the victim of domestic violence suffer this situation because of their partner or former partner, the employer must meet certain obligations.

Thus the art. Merita 21 of the Basic Law, provides in paragraph 1 that: "The employee victim of domestic violence shall be entitled, under the terms of the Workers' Statute, reduction or rearrangement of working time to geographical mobility, the changing workplace, the suspension of the employment relationship with job reservation and termination of contract. "

But apart from the rights safeguarded by the Basic Law expressed for women victims of this social evil and the obligations entrusted to the employer, what is true of the aggressor? What is the incidence of gender violence with their corresponding impact on the working life of the perpetrator of physical or mental abuse suffered by the victim? In other words, if a restraining order to mediate, for example, how it should interpret the absences from work that may be incurred by the employee-perpetrator of domestic violence, if it works at the center or near the center of his victim?

We must not lose sight of the circumstances in each case can be affected by the provisions set forth in the Act and that it is not uncommon for the perpetrator, at times, immersed in an ocean view of the consequences of the repeated application of Act Organic 1 / 2004.

Thus, the above provision seeks to improve the protection afforded to the taxpayer of such assaults, including women, by restraining order.

The imposition of this measure can become the aggressor assume the impossibility of fulfilling their job duties while working in the same center as the victim or the center nearest to where she performs professional services. In these cases there may be an absolute incompatibility between the performance of job duties and obligations imposed by the restraining order.

Clearly, the LO 1 / 2004 establishes a series of measures affecting the peculiar situation of the victim and the impact violence has on their working relationship, but nothing is said about what we might call employee-aggressor.

It is precisely the vacuous about one of the points that has been attacked over the said Act. First, because there is a total lack of regulation of the status of the aggressor in the field of their own employment, a situation which after all will impact on their own victim and the sons of the couple, For them, if we consider the source of income in the family unit generates the employment relationship.

In addition to the restraining order, another measure that could be imposed is the immediate detention whose purpose is to avoid repetition in the conduct sought to be repressed.

Current legislation does not, therefore, the effects on the employment generated by the professional link between the offender and the employer are such measures as to impede the performance of the duties arising from the employment relationship. Understand that we refer to those cases in which, as noted above, the abuser works near or even in the same workplace for the victim to the abusive.

Not in the Organic Law of Integral Protection against Gender Violence provision regulating the effects of the situation itself generates respect of the employment contract of the aggressor.

Only we can find mention of the issue of social rights in the First Additional Provision of the Standard, when determining the negative consequences of abusive acts occurring in their own detriment.

Sets the said First Additional Provision to whom has been convicted of committing an intentional crime of murder or injury against the wife or former wife, you lose the beneficiary of a survivor's pension due to his victim, unless there is reconciliation. Nor will they be paid a pension which corresponded to orphan children of the couple (and this includes also the relations of affection, even without cohabitation), unless there is reconciliation, in this case.

At the perpetrator who had condemned attack on his ex-spouse or spouse or against whom had been together for a stable emotional relationship, is not granted beneficiary status as an indirect victim of the support provided by Law 35/1995 of Grants and Assistance to Victims of Violent Crime and against sexual freedom.

It stopped at the wording of Additional Provision studied, understood as not just a requirement of reconciliation collected, especially when it has been demonstrated statistically that these cases of domestic violence often exercised repeatedly.

Nor can we understand the constraint that the standard assumptions made for the sole crime of homicide and injury. Surprisingly, this legal kindness, and we must understand that the interpretation must be the act of reconciliation has to be very rigorous and strict in all cases.

Turning to the issue of the abusive situation in the area of ​​his employment, any chance it has been suggested is that in the case of shift work system, it is possible to reconcile the work of the victim and the aggressor. But what happens when this option is not viable?

Some say that it is possible to fix the loophole in response to the rating of the restraining order is made: if it is considered as a penalty, then it is cause for disciplinary dismissal (art. 54.2 ET), but it is considered as Prudential, hoist the analogous application of the suspension regulated by art. 45.1, g) of the same body of law that provides for this situation as there is no conviction. Conversely, can be interpreted that the sentence allows the termination of the contract.

Some even refers to the application by analogy of force majeure, when a restraining order which limits the movement of worker-offender. But it is perhaps more doubtful to us, as the force majeure has annexed the note of "inevitable" and it is clear that violence against women is an abuse that is completely preventable, and not itself exercise involves the absence or lack a court order in the absence of criminal conduct would not have occurred.

Leaving aside the possible criticism of vacuous, no doubt about the importance that has come to acquire the LO 1 / 2004 especially for women affected by gender violence and its effectiveness in the various fields covered. But this does not prevent to highlight gaps in the Standard has incurred and urging of regulations, it is evident that the same impact on the employment status of the worker-offender and ultimately to have this one economic translation, could hurt, if anything, to the same potential victims and children of the couple.

Arantxa Hernandez Escrig (Lawyer)

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