Additional compensation for inadmissible dismissal, with amounts that exceed the maximum set in the Workers’ Statute, do not fit in Spanish legislation. That is the conclusion that the Social Chamber of the Supreme Court has reached Wednesday, gathered in full to analyze a case that reopened this debate. The Court already failed in December last year, exceeding 33 days per year worked and a cap of 24 monthly payments, but left a door ajar when they underlined that he did not take into account in his decision by Spain. Now, with that treaty ratified by Spain in 2021 at the table, he insists on its veto to additional compensation based on the circumstances of the employee.
In a press release, the Supreme Court confirms that the Plenary of the Social Chamber has issued a judgment in which it establishes that “the compensation for inadmissible dismissal provided for in article 56.1 ET cannot be increased in judicial means with other amounts that meet the specific circumstances of each case, without this imply a violation of article 10 of the agreement 158 ILO or article 24 Revised, in which it is only indicated that compensation must be adequate. ”
“Applying conventionality control, the TS considers – as it did in relation to agreement 158 ILO – that the right expression to a adequate compensationwhich reiterates article 24 of the revised European Social Charter, is literally inconcreta. Therefore, he understands that it is not directly applicable mandates, but of programmatic statements, of open interpretation, whose concrete virtuality would demand a legislative intervention, “says the Supreme.
This new chapter starts from a judgment of the Superior Court of Justice of Catalonia favorable to a company, by rejecting in 2024 access to additional compensation to the employee who requested it. The Social Tres Court of Barcelona had granted it, but the TSJC revoked it after a appeal of supplication. Given this decision, the employee resorts, presents a contrast judgment and asks for doctrine unification, taking as reference a ruling from the Superior Court of Justice of the Basque Country that did grant additional compensation. The procedure arrived at the Supreme Court, which has decided on Wednesday.
The key to this pronouncement is that it takes into account the ratification of the European Social Charter, whose article 24 establishes the “right of dismissed workers without valid reason to adequate compensation or other appropriate reparation”. The European Social Rights Committee, an agency of the Council of Europe in charge of interpreting the letter, has issued twice (first before one claim and then before another) that Spain breaches this precept for its appraised system in days. The compensation are large when the employment relationship has been long, above the European average, but with the same logic they are lowercase when the relationship has been short.
The ratification of the letter in 2021 led several courts and courts to grant additional compensation, based on the circumstances of the employee, a possibility that was cut dry in December last year with a first pronouncement of the Supreme. But the same, for the dates of the case analyzed, only took into account article 10 of the, which is expressed in terms similar to the Social Charter. Now he rejects that possibility again.
The work position
This decision occurs in full boiling of discussion about dismissal. It is pending that the Ministry of Labor to open a social dialogue table to reform the regulations (something that economy and employers reject), after the Council of Europe gave reason first and then when they indicated that the norm does not comply with the European Social Charter.
PSOE and Sumar said the following in their electoral program on dismissal: “Establish guarantees for working people against dismissal, complying with the European Social Charter and reinforcing causality in the cases of extinction of the employment relationship.” And the institution in charge of interpreting the Charter, the European Committee on Social Rights, has already given its opinion, as the Secretary of State for Labor recalled, Joaquín Pérez Rey, with this newspaper: “That the dismissal in Spain does not meet the European Social Charter is not an opinion. It is an incontrovertible statement. It is not a problem of if we agree, it is a problem of complying with our international obligations”.
Work has been insisting on this line, and hence it announced in June of last year that the dialogue table will open about it with social agents. The Ministry of Economy, meanwhile, makes a different interpretation and already meets the European Social Charter. The socialist doubts are joined by the foreseeable rejection of a modification of the right -wing parties that support the government, such as PNV and Junts.
Business rejection, union support
Entrepreneurs, unlike the unions, do not want to open this melon, which was outside the perimeter of the labor reform. In an interview, the president of the CEOE, Antonio Garamendi, reduced importance to CEDS decisions: “The committee is advisory and there are many advisory issues that are not addressed.” He also stressed that other countries to which CEDS has indicated for similar reasons did not reform its compensation systems.
Garamendi to the question about whether he was concerned about the possible legal insecurity derived, a plot line in which the unions have been insisting. “If you don’t let that negotiation come [los empresarios]to which we urge the Government to lead, CC OO will give a legal battle, a war of judicial guerrillas to try to modify the dismissal regime in our country, ”said the leader of CC OO, Unai Sordo, in the press conference in which he analyzed on the claim of his union, a line in which the head of UGT, Pepe Álvarez.
