The Supreme Court will address in a plenary session in December one of the most agitated issues in the labor debate: compensation for unfair dismissal. Sources from the high court confirm that they will go into the substance of this issue, after several courts grant compensation higher than that contemplated by Spanish regulations. They do so based on the European Social Charter, which Spain ratified in 2021 and which establishes “the right of workers dismissed without valid reason to adequate compensation or other appropriate compensation.” According to the body in charge of interpreting the Charter, the European Committee of Social Rights (CEDS), the Spanish tax system is not always adequate or restorative, as stated in a resolution regarding the claim filed by UGT. According to specialists, it grants compensation above the European average when the employment relationship has been long, but hardly compensates in short relationships.
This debate gained strength with that of 2023, which recognized compensation greater than 33 days for a worker fired in March 2020, just before the explosion of the pandemic — which prevented her from benefiting from ERTE — and only five months later. of signing the contract. The company compensated her with 942 euros, but the sentence increased this figure to 4,435 euros (or to pay unpaid wages since the date of dismissal). In addition to the European Social Charter, the ruling refers to article 10, which is expressed in terms similar to the European text.
Labor lawyers indicate that, although they are not the norm because it is common to reach agreements, it is increasingly common to find this type of compensation that exceeds the assessed system (in addition to the 33 days), which takes into account the circumstances of the employee. . Another example was recently spread on social network X by the leader of the union that presented the claim to the CEDS. “The lawsuit that UGT won in Europe is beginning to be applied so that compensation for unfair dismissal is dissuasive and restorative,” Pepe Álvarez.
In the ruling to which he alludes, the judge indicates: “Considering that we are facing a dismissal without cause and little seniority, I am going to sentence the company to an additional compensation of 10,000 euros in case of opting for termination and not for readmission”. It added that “the CEDS, in a decision published on July 29, 2024 in which it responded to the claim raised by UGT, concluded that Spanish legislation does not sufficiently protect workers in cases of termination of the relationship. labor without valid reason and thereby infringes the Revised European Social Charter.” With these arguments, the judge granted a severance payment of 1,050 euros and an additional 10,000 euros.
The precedent of disciplinary dismissal
Last week many specialists thought about the Supreme Court debate on severance pay following another ruling that was made public at the time. The high court established that companies cannot disciplinaryly dismiss a worker without opening a prior hearing procedure, based on what is indicated in article 7 of the same. Convention 158, which dates back to 1982 but has been in force in Spain since 1986. That is to say, once again Spanish regulations were put in focus that are superseded by international legislation. In this case, the Supreme Court dictated the prevalence of what the ILO establishes.
The previous doctrine of the Supreme Court established that Article 7 of the ILO was not directly applicable and that the prior hearing in disciplinary dismissals was already regulated in the Workers’ Statute. “It must be notified in writing to the worker, stating the facts that motivate it and the date on which it will take effect,” without further precision. Thus, with the Spanish regulations in hand, a prior hearing was required if established in the collective agreement or if the dismissal affects a representative of the workers, when “the opening of a contradictory file will proceed, in which they will be heard, in addition to the interested, the remaining members of the representation to which he belongs.” “If the worker is affiliated with a union and the employer is aware of it, he must give a prior hearing,” the rule adds.
Since the Supreme Court ruling, the scenario has changed. Article 7 of the ILO now prevails, which states: “A worker’s employment relationship shall not be terminated for reasons related to his conduct or performance before he has been given the opportunity to defend himself against the charges brought against him. , unless the employer cannot reasonably be asked to grant this possibility.”
