When a teacher or caretaker spanks a minor on the bottom it should not always be considered as cause for dismissal. The courts – in attention to each case analyzed – apply the gradualist doctrine to prevent this coup from being sufficient reason to dismiss an employee.
The facts of the case resolved by the Superior Court of Justice of Les Illes Balears (access the sentence here) date back to October 2020, when a caregiver who was in charge of a three-year-old student affected by the autistic spectrum tipped her, in the middle of the girl’s tantrum, a spanking on the buttocks while changing her diaper. A teacher from the educational center witnessed the blow without saying anything when she witnessed the event.
Almost 20 days after the whipping, during which the caregiver continued to care for the minor, the worker was dismissed for serious infraction. The Social Court 5 of Palma de Mallorca agreed with the school and considered her dismissal appropriate.
The caregiver – who had a fixed discontinuous employment contract since November 2000 – filed an appeal against the negative ruling before the Superior Court of Justice of the Balearic Islands, which finally agreed with the employee.
The amparo granted by the magistrates is mainly based on questioning the credibility of the witness’s statement. The sentence affirms that the scourging of the caregiver cannot be considered serious because the teacher and witness did not say anything or provide help when witnessing the events.
The sentence values that during the 20 days following the whipping the caregiver was allowed to continue caring for the girl normally and nothing was communicated to the workers’ representation or to the student’s family. This attitude, for the magistrates, does not fit with the seriousness that the imputed facts have for the school and that motivated her dismissal.
gradualist doctrine
To consider the dismissal as inappropriate, the magistrates invoke in their sentence the gradualist theory to endorse or rule out that this blow is worthy of the maximum sanction for the caregiver.
The great seniority of the caretaker as well as the fact that her file does not include any type of prior sanction serves the judges to consider that the whipping does not justify her dismissal. “It is not an object of discussion that the worker has been providing services since the year 2000 without there being any breach of contract or sanction during all that time, not even a simple reprimand,” according to the court ruling.
The blow given to the buttocks cannot be considered as an aggression, characterized by the will to cause damage. The circumstances in which the events occurred – the whipping occurred at a time when the girl was in full tantrum – do not justify her dismissal either.
The gradualist doctrine also values to justify the dismissal that the employee intends to cause any harm to the minor. In this case, as the magistrates affirm, if there was an assault or a strong whipping “it is not explained that the teacher, seeing it, limited herself to continuing on her way without intervening in the facts and without offering her help to the girl, even to the plaintiff if at that moment she was overwhelmed by the situation”.
Different is that the blow had been brought to the attention of the center and it would have been possible to verify if the whipping had caused some type of injury, even if it was a simple erythema or reddening of the skin on the girl’s buttocks.
In application of this doctrine, the judges assess whether it is an isolated and unfortunate conduct that, although it could be deserving of some type of sanction, this should not be dismissal.
In the sentenced case, the magistrates consider that it is not the same to give a whip (light or serious) as a continued mistreatment of minors by the caregiver at times when she is not visible to others and is covered by the communication difficulties of the child. The sanction for both behaviors cannot be the same.
The Supreme Court establishes in its jurisprudence that the prosecution of the dismissal must be approached in any case with a progressive criterion. The purpose is to establish an adequate proportion and correspondence between behaviors and sanctions; always applying it with individualizing criteria and taking into account the peculiarities of each specific case
The magistrates of the Balearic Islands consider, applying the gradualist doctrine, that the dismissal is disproportionate for a punctual and mild scourge.