Publications

The majority of judicial doctrine is in favor of the "prohibition of dismissal" only entailing unfair dismissal

The majority of court rulings have considered that Article 2 of Royal Decree-Law 9/2020 means that the causes related to COVID-19 cannot be considered justified and, consequently, the dismissal must be declared unfair, but not null and void. In this regard, we can highlight the rulings of the High Court of Justice of Madrid of November 25, 2020 and February 2, 2021; of the High Court of Justice of Castilla y León of February 24, 2021 and January 15, 2021; of the High Court of Justice of Galicia of February 8, 2021, or the recent ruling of the Plenary of the High Court of Justice of Catalonia of March 31, 2021.

On the other hand, other rulings have concluded the nullity of the dismissals, among others, that of February 23, 2021, or that of April 20, 2021 of the High Court of Justice of the Basque Country, which has declared the nullity of the dismissal, but limiting the effectiveness of the reinstatement and the accrual of processing wages until the date of termination of the temporary contract (internship) that the worker had.

Non-compliance with the obligation to prorate special payments allows employees to claim, in addition, the amount already paid on a pro rata basis

The Supreme Court, in its ruling of February 8, 2021, has stated that if the labor agreement establishes that special payments cannot be paid on a pro rata basis, it can be understood that the amount paid each month corresponds to items other than the special payments, even though they were paid under such concept, and the amount corresponding to them can be claimed.

The change in the setting of bonus objectives does not constitute a substantial modification of working conditions when this possibility is established in the individual agreement

The National Court, in its ruling of March 4, 2021, examined a case in which it was established by contract that the company had the authority to develop and communicate the variable remuneration objectives, without subjecting their modification to negotiation with the union representatives. The objectives were communicated annually at the beginning of each fiscal year.

In this case, the National Court considers that there has not been a substantial modification taking into account that the individual agreement contemplated the possibility of modifying the objectives and that the modification has not affected the dignity of the workers, their fundamental rights nor are they unattainable objectives.

The Constitutional Court admits that a dismissal carried out with a test that has violated fundamental rights may be unjustified

In a recent judgment, the Constitutional Court has declared valid the qualification made by the High Court of Justice of Madrid, which considered that the dismissal based on evidence obtained in violation of fundamental rights should be qualified as unfair and not null and void.

Thus, the High Court of Justice of Madrid considered that a distinction must be made between dismissal with violation of fundamental rights and dismissal in which there has been a violation of fundamental rights in the process of obtaining evidence of the facts motivating the dismissal, so that in the first case the dismissal must be declared null and void and in the second case unfair. Well, the Constitutional Court considers that this interpretation is neither arbitrary nor unreasonable, pointing out that it has been the interpretation accepted by many courts in the absence of a pronouncement by the Supreme Court.

The High Court of Justice of Madrid overturns a judgment requiring reinstatement in the event of unfair dismissal

In the lower court decision, a labor court of Madrid declared the unfairness of a dismissal, considering that the effects provided for in Article 56 of the Workers' Statute (reinstatement or payment of compensation) should not be applied, but that the employee should be reinstated in the company in accordance with the provisions of ILO Convention 158 and the European Social Charter. 

For its part, the High Court of Justice of Madrid, in its rulings of March 17 and April 23, 2021, states that Article 10 of Convention 158 does not require the reinstatement of the worker, so that the employer, in the event that the dismissal is deemed unfair, has the option to opt for reinstatement or pay the corresponding legal compensation.