The European Committee of Social Rights has asked Spain to review it so that it is more dissuasive and better protects workers.
Dec. 20 () –
The Plenary Session of the Fourth Chamber of the Supreme Court, unanimously, has concluded that the compensation for unfair dismissal established in article 56 of the Workers’ Statute (ET) of 33 days of salary per year of service “cannot be increased via judicial”.
The case studied by the High Court is that of a woman who provided services in a company with registered office in Barcelona, with a full-time indefinite employment contract since 2019, professional category of ‘Operation manager’ and gross monthly salary of 25,000 euros.
On March 27, 2020, after the outbreak of the pandemic, the company notified the worker of the termination of the contract. The company conveyed its willingness to pay him the maximum compensation (33 days), equivalent to 941.78 euros, an amount that was paid together with the balance settlement and settlement, receiving a total of 2,766.58 euros.
The worker appealed and the Superior Court of Justice of Catalonia ruled that this amount, which did not reach 1,000 euros, was “clearly insignificant” and did not compensate for the damage caused by the loss.
Although the termination of the contract was based on objective causes, according to the Court, these were of a temporary nature due to the pandemic and reveals “an excess in the exercise of the right of termination”, since the worker was excluded from the ERTE due to force majeure initiated days after dismissal.
For all things, the Court of Catalonia set the amount of compensation for the unlawful termination of the employment contract that lasted almost five months, at 4,435.08 euros.
However, now the Supreme Court in its ruling indicates that the compensation for unfair dismissal established in article 56 of the Workers’ Statute (ET) cannot be increased judicially with other amounts that take into account the specific circumstances of the case, without that this represents a violation of article 10 of Convention 158 of the International Labor Organization (ILO), which only indicates that the compensation is adequate.
As detailed by the Supreme Court, article 10 of Convention 158 of the International Labor Organization (ILO) provides that, in the event of unjustified dismissals, if the reinstatement of the worker is not possible, the bodies that decide on the dismissal should “order the payment of a adequate compensation or other relief deemed appropriate.”
For its part, article 56 of the Workers’ Statute establishes that unfair dismissal, in general, entails reinstatement or the payment of compensation equivalent to 33 days of salary per year of service, with shorter periods of time being prorated by months. for one year, up to a maximum of twenty-four monthly payments.
The ruling indicates that constitutional doctrine has stated that the assessed compensation that Spanish legislation has established is “adequate”, which is why the High Court has established that it is not possible to judicially increase the compensation for unfair dismissal of 33 days.
EU RECOMMENDATIONS TO REVIEW DISMISSAL
In Spain, the maximum limit of compensation in case of unfair dismissal cannot exceed 33 days of salary per year of service, with a maximum limit of 24 monthly payments. In the event of dismissal for objective reasons and collective dismissal for economic, organizational, technical or productive reasons, the maximum limit cannot exceed 20 days of salary per year worked, with a maximum limit of 12 monthly payments.
It is worth remembering that just a month ago, the Committee of Ministers of the Council of Europe approved a recommendation to the Spanish Government in which it is urged to review the compensation for unfair dismissal so that it is truly a deterrent for the employer and so that it effectively repairs the damage caused. to the worker.
Following the decision of the European Committee of Social Rights (CEDS) published on July 29 in response to the collective claim of UGT against Spain for the insufficient compensation for unjustified dismissal, the Council of Europe issued a recommendation to the Government of Pedro Sánchez to guarantee that the amount of compensation in unfair dismissals without justified cause is a deterrent for the employer and thus protects workers against this type of dismissal.
In fact, reviewing the dismissal compensation so that it is sufficiently dissuasive and protects workers more is one of the objectives of the Ministry of Labor for 2025, which wants to change the regulation of the Workers’ Statute so that the compensation takes more into account the personal and work circumstances of the dismissed worker. In this way, it could be modulated according to these circumstances and not always be the same fixed amount.
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