On the right track to promote domestic workers’ rights? A comment on case C-531/23 Loredas

Abstract

Domestic workers undertake vital reproductive labour across Europe, yet their rights have rarely been considered by the Court of Justice of the European Union (CJEU). This comment critically examines the CJEU's judgment in Loredas, which found that the exemption of private domestic employers from the general obligation to record working time is contrary to EU law. We argue that this is a welcome step towards recognising domestic work as work ‘like any other'. However, the CJEU's suggestion that derogations in respect of part-time or overtime work could apply to the domestic work sector, on account of its special features, is a retrograde move and could reinforce workers’ structural vulnerability to labour exploitation.

Domestic workers undertake vital reproductive labour across Europe, ¹ yet their rights have rarely been considered by the Court of Justice of the European Union (CJEU). In only its second judgment relating to domestic work, the Court's preliminary ruling in the Loredas ² case found that the exemption of domestic employers from the general obligation to record working time is contrary to EU law. ³ The Court also considered whether the exemption constituted discrimination on grounds of sex, holding that this issue was to be determined by the national court in line with established principles.

The first section of this commentary sets out the key facts and findings of the case. The second section argues that the judgment exemplifies the double-edged role of law in tackling domestic workers’ vulnerability to labour exploitation. On the one hand, the CJEU insists that domestic work cannot be subject to a blanket exception to the obligation to record working time, reaffirming the potential of EU law to challenge national frameworks which create structural vulnerability to labour exploitation for domestic workers. On the other hand, the judgment leaves the door open for Member States to avail of derogations to the Working Time Directive ⁴ for the domestic work sector, thereby potentially enabling the construction of ‘structures of exploitation’. ⁵ The final section reflects on the discrimination aspects of the judgment.

The case

HJ was a full-time domestic worker who worked more than the legally permitted working hours, up to 79 hours per week, and challenged her dismissal before the Spanish courts. Her claim for payment for overtime hours and untaken leave days was rejected by the Basque High Court of Justice, on the basis that she had failed to prove her working time. Her employers’ failure to produce records did not prove her claim, as domestic employers were exempt from the requirement to record working time under Spanish legislation. The Basque court addressed a request to the CJEU for a preliminary ruling in relation to the compatibility of the national framework with EU Law.

The first legal issue for the CJEU concerned the right to limited working hours and to rest periods, as protected by Article 31(2) of the EU Charter of Fundamental Rights and regulated by the Working Time Directive. ⁶ The Court began by emphasising the ‘particular importance’ of the limitation of working time, in light of the purpose of the Directive to improve the living and working conditions of workers and protect their health and safety. ⁷ While Member States have a margin of discretion in respect of the implementation of a system for measuring the daily working time of each worker, ⁸ the specific arrangements adopted must not render the rights enshrined in the Charter and the Directive meaningless. The CJEU found that a system for ‘objectively and reliably measuring’ working time is crucial to assessing the number of extra hours, limiting weekly working time and guaranteeing minimum rest periods. ⁹ Furthermore, it highlighted workers’ ‘position of weakness’ within the employment relationship to support its conclusion that the burden should be on the employer to prove working time (as opposed to the employee). ¹⁰ In these circumstances, the blanket exclusion for domestic employers violated EU Law.

The second issue was whether the exception constituted indirect discrimination on grounds of sex under the Equal Treatment Directive ¹¹ and the EU Charter. ¹² The CJEU had previously ruled, in its landmark TGSS ¹³ judgment, that domestic workers’ exclusion from employment benefits in Spain was indirectly discriminatory on grounds of sex. In Loredas, the Court referred to TGSS to assume that the applicant worked in a female-dominated sector and appeared to accept that the exemption of domestic employers from the obligation to record working time was indirectly discriminatory, meaning that it would need to be objectively justifiable and pursue a legitimate aim. ¹⁴ However, as the CJEU did not have any information on the objective pursued, it was for the Basque court to decide this issue based on the principles laid down in TGSS.

Tackling domestic workers’ vulnerability to exploitation: one step forward, one step back?

The Loredas case thus builds on the TGSS judgment and reaffirms the potential of EU law to challenge national legal frameworks that make domestic workers particularly vulnerable to exploitation and exclude them from fundamental and human rights at work. ¹⁵ Exceptions in labour law – which often insist on a ‘work like no other’ rationale to reduce domestic workers’ rights – normalise day-to-day exploitation and produce ‘state-constructed vulnerability’ for this group of workers. ¹⁶ In contrast, the Loredas judgment expressly recognises the position of weakness of all workers in the employment relationship and reaffirms Member States’ responsibilities to ensure that domestic workers are effectively protected by working time rules. In doing so, it increases resistance to the ‘law of the household workplace’, which is asymmetrical, reiterates domestic workers’ invisibility and feeds the expectation of their constant availability to work. ¹⁷ It also acknowledges the key role of domestic employers in promoting domestic workers’ fundamental and human rights at work. Its framing of domestic work as ‘work like any other’ reflects the guiding principles of the International Labour Organization's Convention No. 189 and Recommendation No. 201 concerning decent work for domestic workers. ¹⁸

However, despite this positive progress in terms of counteracting vulnerability to exploitation, the Loredas ruling also mobilises the ‘particular features of the domestic work sector’ to effectively invite Member States to invoke derogations to the Working Time Directive in respect of overtime and part-time work. ¹⁹ Article 17(1) enables derogations when the working time is not measured and/or predetermined, or can be determined by the workers themselves. ²⁰ It gives a non-exhaustive list of examples, including managing executives, ²¹ family workers, ²² and workers officiating at religious ceremonies in churches and religious communities. Existing case law has emphasised the need to restrictively interpret derogations to workers’ rights, ²³ and to interpret the ‘autonomous workers’ derogation contained in Article 17(1) narrowly. ²⁴ In the Hälvä judgment, ²⁵ which concerned residential care workers described as ‘relief parents’, the Court found that the general derogation provided for in Article 17(1) did not apply because the employees were not in a position to determine, as a whole, the duration of their working time. On the contrary, working time – periods of work and the number of hours to be worked – was ‘largely predetermined by the contract of employment and by the employer.’ ²⁶ The difficulties that employers can face in measuring working time are not, in general, sufficient to consider that employees’ working time cannot be measured or predetermined. ²⁷ Furthermore, the ‘relief parents’ in this case were not considered ‘family workers’ for the purposes of Article 17(1) as there was no family relationship. ²⁸ The Court's loose approach to Article 17(1) in Loredas is out of sync with its own case law, as well as the spirit of the ILO's Convention No. 189 and Recommendation No. 201 on domestic workers.

In this way, having closed off one aspect of structural vulnerability for domestic workers, the CJEU has left the door open for Member States to introduce new ‘structures of exploitation’ (or retain them, if they already exist). It is noteworthy that Article 17(1) might have already served as a legal basis to exempt domestic workers from the obligation to record working time in some EU Member States. ²⁹

Discrimination

Another striking feature of Loredas is the CJEU's limited discussion of discrimination, in contrast to its judgment in TGSS in which sex discrimination played a central role. The claimants in TGSS and Loredas were women, yet these cases do not provide any information on other intersecting grounds of potential discrimination. Between the two cases, the European Commission published the EU Care Strategy (2022), and the European Parliament published its Resolution of 5 July 2022 to promote decent working conditions for care and domestic workers, taking into consideration their precarious situation and ‘intersectional discrimination’ on grounds of gender, race or ethnicity, socioeconomic status and nationality. ³⁰ These grounds provide key indicators of the power relations which shape the expectation of constant availability in the domestic work context. ³¹ Domestic workers in Europe are often from a migrant background; in Spain, more than 80% of domestic workers registered in the Social Security system were born outside of the EU. ³²

Even if the Court in Loredas had reached a conclusion on the discrimination point, it did not consider the intersecting vulnerabilities that arguably place domestic workers in a position of particular weakness vis-à-vis the employer. It remains to be seen whether it will be possible in the future to move beyond the abstract ‘position of weakness’ of workers, in order to recognise other compounds that impact the structural disadvantage of domestic workers.

Concluding remarks

Loredas provided an opportunity to address human rights violations and the structural vulnerability of domestic workers at the EU level. Overall, while the judgment's finding that domestic employers may not be completely exempted from the obligation to record working time is welcome, it falls short of the ILO's human rights-based approach to domestic work, as well as recent commitments of EU institutions in respect of care and domestic work. While these EU policies are not legally binding, they could (and should) reinforce a more active commitment on the part of the EU institutions to promote domestic workers’ rights; for example, the European Commission could proactively identify working time issues such as those raised in Loredas as part of its role in overseeing the correct implementation of EU law. This would enhance the capacity of EU law to meaningfully challenge the structural vulnerability of domestic workers.