The Spanish dismissal system does not comply with the European Social Charter, although the country ratified that treaty of social and labor norms in 2021. That is the main conclusion that is extracted from the resolution that has just published the Council of Europe before the claim regarding the CC OO union. This newspaper advanced the meaning of the opinion, but until now its content had not been made public. The text goes far beyond that first idea: it constitutes a general amendment to the Spanish dismissal system. He insists on the arguments he already wielded before the claim in which he warns of other failures.
The resolution is signed by the European Social Rights Committee (CEDS), the European Council Agency in charge of interpreting the European Social Charter. In its conclusions it unanimously establishes that Spain violates article 24.b as regards compensation for unfair dismissal; to readmission after an unfair cessation; and also to compensation for unfair dismissal of temporary workers hired in law fraud. CC OO had questioned all these matters in his claim.
The aforementioned article, on 24.B, sets the right “of dismissed workers for no valid reason to adequate compensation or other appropriate repair.” The reflection on which orbits the text is that the system applied in Spain’s days is not always adequate or repairing, which (with a maximum of 24 monthly payments) of the Spanish regulations do not always relieve the damage caused in unfair dismissals.
“Any limit to compensation that may prevent damage from being proportional to the loss suffered and sufficiently dissuasive is, in principle, contrary to article 24.B of the Charter,” establishes the opinion. The CEDS goes further in its rejection of the appraised system: “Although the government [español, en sus alegaciones] He states that one of the objectives of the system that introduces maximum compensation limits was to provide greater legal certainty, it cannot be excluded that default compensation can rather serve as an incentive for the employer to dismiss workers in the improper way. ” of a cost and benefits analysis ”.
“The upper limit of compensation scale does not allow to grant higher compensation depending on the personal and individual situation of the worker, since the courts can only order compensation for inadmissible dismissal within the boundaries of the scale,” criticizes the CEDS, which refers to the recent sentences of several Spanish courts that do grant those additional compensation referring to the letter. The supreme to this possibility in December, when positioning themselves against those additional compensations based on the employee’s circumstances, but left an open door when underlining that he did not take into account the ratification of the letter. , since then it will contemplate the Spanish acceptance of the text.
“The Committee,” says the CEDS, “considers that the maximum limits set by the legislation are not high enough to repair the damage suffered by the victim in all cases and be deterrent to the employer.” The opinion considers that “the real damage suffered by the affected worker linked to the specific characteristics of the case may not be taken into account, among other things because the possibility of obtaining additional compensation is very limited.”
The CEDS is even positioned before the solution that many laborists have raised to solve the lack of adaptation of the Spanish system to the letter: since the lowest compensation, given the appraised system in days, are given, different voices have been defending that a minimum compensation could solve the problem. “Contrary to what CC OO states, the establishment of said minimum compensation would not be sufficiently deterrent to the employer and would not necessarily allow such compensation to be proportional to the loss suffered,” estimates the committee.
More reincorporations
The CEDS is pronounced on another key matter and on which CC OO asked: the readmissions after an inadmissible dismissal. The Committee considers that adequate reparation “must include readmission as one of the resources available for national courts in cases of dismissal without just cause.” The committee indicates that “although the readmission is possible in Spanish law in limited cases, the national courts cannot assess whether it is the most appropriate option in a certain case.” Therefore, he considers that the national courts “should be able to evaluate the suitability of the readmission in consultation with the parties of the process” and that “the lack of opportunities” so that the judges make that diagnosis constitutes a violation of the letter.
The CEDS also pronounces on the adequacy of Spanish regulations to the letter in regards to the inadmissible or null dismissal of a temporary worker: it emphasizes that the applicable provisions are identical to those of the indefinite workers and that replicates the previous interpretation. That is, “the stops established by the legislation are not high enough to compensate for the damage suffered by the victim in all cases or to deter the employer.”
CC OO claims the opening of a dialogue process
CC OO sources underline that this resolution urges to reconsider several policies, beyond the purely compensation system: to consider the mandatory readmission, recover the processing wages, propose the nullity in the temporary contracts declared fraudulent, improve the protection of the extinction of the contracts of the undefined non -fixed personnel of the public administrations and, in addition, to review the amounts of compensation.
“We will place the Government to urgently open a social dialogue table to address the adequacy of the Spanish regulatory framework in terms of dismissal, with the aim of complying with the requirements of the European Committee in response to the complaint of CC OO,” adds the union directed by Unai Sordo.
The Ministry of Labor has been expressing its intention to open this dialogue table. , after the opinion that gave UGT reason in a similar claim, but has not yet summoned unions and employers to address this matter. The Second Vice President and Minister of Labor, Yolanda Díaz, said the one who will open this negotiation soon. “Prepare. You will see the struggle that comes with dismissal, but we are going to do it. We have everyone against,” he said at the CC OO Congress.
Among those opponents mentioned “a ministry close to mine”, in reference to change, despite the fact that PSOE and add they committed to reform the system in their government agreement. They promised to “establish guarantees for working people in the face of dismissal, complying with the European Social Charter”, without more concretion.
“It is a commitment that is in the Government Pact that the dismissal complies with the legal regime of the European Social Charter,” insists the Ministry of Labor. “We will study in detail the resolution that goes beyond previous opinions in that there is no deterrent effect of dismissal in Spain and that, therefore, we will address within the framework of social dialogue,” adds the department of Díaz.
The employer also rejects a change in the regulatory system of compensation for dismissal, a project with very few options to prosper in Congress for the majority of rights. Deaf recently predicted that PNV and Juns would not support in any way a change that harden or make improper cessations.
Is the dismissal expensive?
The main defense of entrepreneurs in the debates about compensation for inadmissible dismissal is to remember that the 33 days with which it is ordered in Spain is well above the appraisal of other countries. According to World Bank data, Spain compensates for workers’ termination with 10 years of age with about 28.6 weeks of salary, compared to 10.8 in France, the 17.1 of Portugal or the 21.7 of Germany. The unions insist that this data, without context, is misleading, that not radiography the entire system. A statistic to which they usually allude to underpin this argument is that of the rigidity in the protection of employment that disseminates the OECD. This indicator takes into account different variables, such as notice time, compensation or difficulties in executing dismissal. In that Spain classification (2.43 points) is below the Czech Republic (the highest data, 3.03), Portugal (2,87) or France (2,68), but above Germany (2.33) or the United Kingdom (1.9).
The compensation (last data available) was 7,446 euros, with very remarkable differences by ages: among those dismissed from 20 to 24 (which normally have been in their companies less time) was 886 euros, compared to 16,784 of those over 55. And it is much or little, depending on the age unfair.
