If the government wanted a “quiet” autumn in the workplace to organize the upcoming reforms, by prioritizing the reduction of working hours before opening the melon of layoffs, the blow has backfired. After the “error” in the Parity Act who removes the shield against the dismissal of the people who requested an adaptation of the day to reconcile, now it is Podemos who opens fire and brings a plan to the plenary of the Congress which renders null and void all dismissals currently considered inadmissibleThe aim is to close the way to “free” dismissal but blurs the protection of many workers who suffer a violation of their labor rights.
A member of the government during the previous legislature and now “exiled” to the Joint Group of the Lower House, the purple party submitted a proposal for a “Law on the Status of Workers” at the end of the opening. An initiative that the Executive did not veto and which hopes Since June, the way has been clear for its debate to be taken into consideration in plenaryThere is still no date, although it is expected that it will happen in the coming weeks, unless the majority groups of the Congressional Council continue to delay its processing.
Although it is not predictable that the proposal will pass this vote, it must be remembered that Podemos has the power to disrupt the government’s plans, especially in the area of work, as demonstrated when it overturned and forced to redo the new regulation of unemployment benefits. Therefore, the vote on its initiative will force the PSOE and, in particular, Sumar, as well as the coalition allies, to present itself in a key aspect left pending in the 2021 labor reform: the regulation of layoffs.
But the formation led by Ione Belarra is now going well beyond the repeal of the changes introduced by the PP in 2012, which reduced compensation for unfair dismissal from 45 to 33 days per year. What it is proposing is to eliminate unfair dismissal itself. However, in doing so breaks the principle of balance between the justification of the dismissal and the definition of the red lines of violation workers’ rights that the latest reforms have respected.
We can follow a strategy that similar to the one he applied for during his government period of the Ministries of Equality and Social Rights: increase the cases of nullity of dismissal. A strategy which has caused an increase in judicialization and which has been accompanied by numerous errors in legislative technique which have extended to the present legislature, as happened in the case of the parity law. They now intend to take this philosophy to its maximum expression.
End of unfair dismissal
The lawyers consulted by elEconomista.es who analyzed the text of Podemos emphasize that it opens the door to a “transcendental reform” which, in practice, determines the nullity if “the reasons for the dismissal are not proven or the formal requirements are not met.” This is explained by Omar Molina, from Augusta Abogados, who recalls that, until now, the dismissals are declared appropriate, inappropriate (which involve the payment of compensation or reinstatement if the company so wishes) or nullwhich involve an immediate return to work. We can propose to reduce the alternatives to two: “tight or straight” or zero.
What is being proposed here is a radical change in the balance of labour relations.: if declared void, reinstatement It would no longer be automatic, but the worker would have the power to decide If you choose between this or compensation (which would increase to 45 days per year in 42 monthly payments maximum). In both cases, you will receive “salary wages”, which the PP reform has limited to cases of reinstatement (decided by the company, as in the case of unfair dismissal, or automatic due to the nullity of the dismissal).
The aim is to eliminate unfair dismissal as an “intermediate” means that many companies use for “free” layoffsin which a dismissal is presented (usually disciplinary and without fair compensation), then recognize the inadmissibility and agree on compensation that does not exceed 33 days per year worked, with a maximum of 24 monthly payments. Something that explains the disproportionate weight of disciplinary dismissals in Spain.
In addition to increasing this compensation, Podemos wants to toughen the conditions for justifying disciplinary dismissal, extending to all staff workers the preventive measures provided for in current legislation. only for union representatives. Although he also highlights objective dismissals, the compensation for which is 20 days.
Therefore, he proposes to increase the compensation from 20 to 25 days. in which they are not accredited all economic, productive, technical or organizational causes invoked for the same. It turns out that 25 days is an allowance that, on average, is paid for permanent contracts assigned to work. A similar approach would apply to collective redundancies.
Jesus LaheraProfessor of labor law at the Complutense University, researcher on the labor market and member of the board of directors of the National Association of Workers (Asnala), considers that the “system change” proposed by Purple Training represents “a return to the situation before the labor reforms of 2012 and 2010“. Something consistent with the electoral program of Podemos, even if it implies “a drop in employment costs” that could trigger temporary employment. In doing so, this will counteract a good part of the effects of the latest labor reform of 2021.
What happens is that by doing this This also distorts the very notion of the nullity of the dismissal.Currently, a dismissal declared null and void results in the immediate reinstatement of the worker, with payment of wages not received in the meantime.
But the cases in which it is applied are linked to the violation of fundamental rights enshrined in the Constitution but also to paternity or breastfeeding leave and those linked to conciliation, as well as the protection of victims of gender-based violence or sexual assault. In practice, the Podemos initiative makes the effects of the declaration of nullity more flexible, “merging” them with the one currently applied for inadmissibility. But with higher compensations.
Legal uncertainty
The problem is that by establishing that any dismissal that does not comply with the law is null and void, it eliminates from the norm the mention of all cases of violation of workers’ rights that labor legislation now includes. In other words, it “distorts,” as Lahera points out, the armor collected for people in these situations.For example, the dismissal of a pregnant woman would have the same legal consideration as a disciplinary dismissal “overturned” for a procedural defect.
This causes a uncertain legal scenario in the specific protection of the work of workers who are victims of this situation, which Podemos is trying to compensate by increasing compensation. Thus, the new regulation introduces additional compensation that the worker can demand depending on “concomitant circumstances such as their age, level of education or employability difficulties.”
It also includes “independent compensation” to that linked to nullity if it is not detected that “cases of discrimination prohibited by the Constitution or the law have occurred or have occurred with violation of the fundamental rights and public freedoms of the worker.” But this is not the case when other rights related to pregnancy and paternity leave are violated. and other forms of conciliation now included in the Workers’ Statute.
But these compensations They are not new. In fact, they are “copying” the plan managed by the second vice president and leader of Sumar, Yolanda Díaz, to toughen the unfair dismissal, although in her case it does not contemplate eliminating it or recovering the general compensation of 45 days. And this would maintain the current nullity hypotheses.
Experts believe that the effect of Podemos’ proposal to cut off the path to free dismissal would have been achieved with a change in the causality of objective dismissals and a reform of inadmissibility and its compensation, without altering the existing protection in the event of nullity. But with the regulation it proposes, not only does the judicialization of dismissals increase even more, but this would generate a scenario of legal uncertainty that would affect many workers.
