Another unfair dismissal reform awaits the new government in Spain

not enough for unions and too rigid for companies. The current regulatory framework Unfair dismissal nobody is happy in Spain.

Currently, when a company cancels an employee’s contract without objective or disciplinary reasons, it must compensate him by paying 33 days’ salary per year worked, up to a maximum of 24 monthly payments. The amount was determined by CEO Mariano Rajoy in labor reform In 2012, at the height of the crisis, when companies demanded greater workforce flexibility, stifled by falling orders, defaults and lack of financing. Until then, the reconciliation of payrolls was more complicated because each unfairly dismissed worker had the right to claim 45 days’ salary per year worked and a maximum of 42 monthly payments.

Neither formula has prevented disputes over termination from flooding the courts, where the law is interpreted in very different ways due to a lack of legal specifications. “It’s an overly restrictive system. It is articulated based on alleged violations of the law by workers, when production needs require a paradigm shift, depending on reality/business needs,” said labor lawyer Bernat Miserol Diario La Ley (DLL).

Fabian Valeromanaging partner Lawyers Zeres, believes that it is still more difficult than ten years ago to get a statement about the unfairness of a dismissal: «The labor reform from 2012 regarding dismissals has been retained. The fees were not changed, nor were the salaries of the processors returned, nor were the causes of the objective dismissal changed. We continue as we were,” he explains.

But not for long. The next government will have to deal with another unfair dismissal reform. Some judges impose sentences that raise damages above the legal threshold, adhering to Convention 158 of the International Labor Organization (ILO) and Article 24 of the European Social Charter. This includes the right of workers dismissed without just cause to “adequate compensation or other appropriate compensation”.

And, in some flagrant cases, the amount specified in worker status (ET) does not guarantee fair or dissuasive compensation, as recognized by those judges, who, in the absence of an efficient and flexible framework, are forced to interpret the law at their own risk and expense, determining the amounts they deem appropriate. This situation has also created legal uncertainty for companies, who do not know what to expect when it comes to adjusting their workforce as the judgment of justice can go anywhere. And not only in compensation. Also when determining the cause of termination. Since they are not well defined, they lead to different sentences for identical cases.

“inevitable” reform

Added to the pressure from the lawyers and the company was pressure European Committee for Social Rights, which at the request of CC.OO reviews the conformity of national legislation with the assumed obligations regarding the protection of workers. and UGT. «It will most likely prove them right. Previous statements with France and other countries suggest that they will go in the same direction. If you say that in Spain the compensation is not legal because it does not assess the specific circumstances of the person affected [tiempo en la empresa, tempo en el paro hasta la jubilación, por ejemplo], we will be bound by the legal change, it will not be possible to avoid it“, explains Valero.

Nor will it be possible to avoid the consequences of misuse for a certain period of time in the public sector. Just a week ago, the Supreme Court Xustiza de Galicia (TSXG) referred the previous decision to the EU Court (CJEU) in which he asks for a decision on three issues. The first is whether Spanish legislation contains “sufficiently deterrent” measures against public administrations to prevent and punish the abuse of temporary contracts. Another tries to clarify whether, in the case of a negative answer, the workers must be granted permanent status. And, in such a case (the third), if they must be incorporated without going through a selective process —opposition—. “If they fail in this regard, the entire system of access to public employment is burdened […] We would find two people for the same position. Valero warns.

High mortality fixed-discontinuous, under a magnifying glass

Although the review of damages due to unfair dismissal is not yet underway, Jose Manuel Corralesprofessor of economics and business at European UniversityHe thinks that it is not his priority. “Yes, it is true that its expansion would be positive, but it is not a big challenge of the labor market at the moment because jobs are not being destroyed and it does not seem to be the best policy [del nuevo Gobierno] it is important to change what works. It would be a very serious mistake,” he slides.

However, the new executive director encourages an in-depth study of the contracting phenomenon fixed-discontinuous to prevent this type of contract from becoming another formula for invisible job insecurity in the sectors where it is most prevalent (services and agriculture): “It is true that excessive mortality and fluctuation are perceived in fixed-discontinuous […] But we don’t know how many of them are paralyzed by their activity at any given moment »Explain.

This is not the only request that will be on the table of the new government. Some lawyers suggested that severance pay be adjusted to the size and turnover of a particular company. “Yes, it would be positive, but it should be noted that it would make the regulations much more complex,” says Corrales, because judges would be forced to review all business accounts.

Valero is of the same opinion: «It is difficult for me to set percentages at the legal level. For the purposes of the European Social Charter, it is taken into account, for example, if the company has a systematic dismissal policy at the minimum price because the legal compensation makes them laugh, but few judges apply the additional compensation criteria, “he admits.

This newspaper contacted Galician Association of Employers (CEG) get their views on the reform. They assure that they will give their opinion within the framework of the Social Dialogue “when the time is right”.