Today, the legal compensation for unfair dismissal is quantified on the basis of 33 days of work per year of service, with a maximum of 24 monthly payments, according to the current wording of article 56 of the Royal Legislative Decree 2/2015, of October 23, which approves the consolidated text of the Workers' Statute Law (“ET"). Although in the case of employment contracts signed prior to February 12, 2012, compensation for unfair dismissal is calculated at a rate of 45 days of salary per year of service, calculated on said date and at a rate of 33 days of salary per year of service. service for the time of subsequent service provision. As long as the resulting amount does not exceed 720 days of salary, unless the calculation of the compensation for the period prior to February 12, 2012 results in a higher number of days, in which case this will be applied as the maximum compensation amount, without that this amount may exceed 42 monthly payments. And this according to the eleventh transitional provision of the ET.
Notwithstanding the above, the reality is that, in just over a year, the dismissal of any worker has become a high-risk activity for employers, since in some cases, they are unable to quantify their maximum risk. economic at the time of dismissal.
And this is because, after the entry into force of the Law 15/2022, of July 12, integral to equal treatment and non-discrimination (“Non-discrimination law"), the assessed cases, in which the dismissal of a worker can be declared void (that is, when the origin of the causes alleged in the dismissal letter has not been amply proven) have increased considerably, reaching cases such that The businessman, in the vast majority of cases, is unaware. These assumptions may be: the serological status of the worker, his or her conviction or opinion, socioeconomic situation, illness or health condition, among others.
In the event of a claim for null dismissal, the burden falls on the employer to prove that there is no reason for discrimination, beyond those described in the dismissal letter that motivated it. Since it is not possible to prove what is unknown, proving the veracity - not even the provenance - of the causes of dismissal has become what is commonly known as a “diabolical test".
Furthermore, in the last month, we came across the latest statements from the European Committee of Social Rights (““ECSR”), who has demanded that the Spanish State review the state labor regulations for the next fiscal year 2024. And this by understanding that, in all those cases in which the severance compensation provided for in article 56.1 of the ET, does not sufficiently compensate the worker For the damage suffered, legal mechanisms must be established that allow for adequate reparation.
And this debate originates after the entry into force on July 1, 2021 of the Instrument of Ratification of the European Social Charter (“European Social Charter"), which in its article 24, section b) establishes “…the right of workers dismissed without valid reason to adequate compensation or to other appropriate repair".
However, it has not been necessary to wait for the reform of article 56.1 of the ET to be approved - with or without consensus of the social agents - for the establishment of new parameters in the quantification of compensation for unfair dismissal.
Thus, we already have judicial pronouncements. For example, that of the Social Chamber of the Superior Court of Justice of Catalonia, who - under the provisions of article 24 section b) of the European Social Charter - agrees to set additional compensation to that provided for in the article. 56.1 of the ET, because it is understood that, in the specific facts prosecuted, the compensation for unfair dismissal established by Spanish regulations does not sufficiently compensate the worker.
The TSJ of Catalonia understands that it is the responsibility of the judges and courts to determine whether or not the international standard takes precedence over Spanish law, consequently leaving, in most cases, to the discretion of the Social Courts, the determination of the total amount of compensation to be received by the worker in the event that his dismissal is declared unfair, as long as Spanish legislation does not comply with European regulations.
With all of the above (expansion of the cases assessed for nullity of the dismissal, as well as cases in which it is understood that the maximum legal compensation for unfair dismissal does not sufficiently compensate the worker), it is more necessary than ever to have advice continued consultation of professionals who are experts in labor law, who must take on the matter from the beginning, even before writing the dismissal letter. This type of ongoing legal advice is the only one that will allow the employer to know the risks that he could face in the event of a subsequent lawsuit by the worker and in response to the latter's very personal circumstances.
For this reason, from the Labor Area of TOMARIAL we strictly advise avoiding the delivery of a dismissal letter based on vague, generic and imprecise causes.
Sara Puig Carbonell
Lawyer Labor Department TOMARIAL
