The decision of the Supreme Court to correct its own doctrine to defend the obligation to proceed to a “prior hearing” procedure in the event of disciplinary dismissal, opens a uncertain scenario for companies that are now considering laying off a worker. It is not for nothing that 54% of membership losses due to layoffs are classified in this type and total 430,716, or 7.2% more since the start of this year.
The Social Chamber of the High Court specifies in its judgment that the change in case law does not establish “canons of retroactivity, typical of laws”. But that could open the door to thousands, if not tens of thousands, of declarations of inadmissibility. for not having followed this procedure From now on. Above all, if we take into account, as we said in elEconomista.esdisciplinary measures are often used as an alternative to the “express” dismissal removed in the 2012 labor reform.
The ruling changes the judicial interpretation of how Spain Article 7 of Convention 158 of the International Labor Organization (ILO) applies since 1986. Thus, article 55 of the Workers’ Statute recognizes the obligation of this prior hearing but only for union delegates and workers affiliated to a union. The Fourth Chamber of the Supreme Court now interprets that this absence is not justified in the rest of the cases, citing the vast body of law and law applied over the last 30 years.
Legal scholars continue to analyze the implications of the judgment, which does not specify relevant points such as the exact consequences of the lack of procedure, nor how it should be articulated. Nobody excludes that the governmentwhich has not yet commented on the decision, will modify article 55 to adapt it to the new legislation and provide clarity for businesses and workers. But until then, many companies will have to rethink their “modus operandi” in terms of dismissal.
Towards free dismissal?
And 54% of membership withdrawals due to dismissal are due to disciplinary causes, according to the latest Social Security data. In September, they exceeded 54,000 for the first time (a threshold that has not been exceeded even during the pandemic), with a cumulative total of more than 430,000 so far this year, or 54% of the total . Even if layoffs already closed will not be affectedgives an idea of the impact now, since the percentages remain stable month after month.
It should be noted, however, that Social Security figures, while the most up-to-date, are more volatile and only include the initial withdrawal, which in many cases is the starting point of a longer process. It is common for some companies to choose the route of disciplinary dismissal (which, remember, does not result in compensation) for its simplicity: you just have to write a dismissal letter and wait for the conflict to be resolved by conciliation with much higher compensation.
Thus, according to data from the Statistics of Dismissals and their Costs prepared by the Ministry of Labor, the average amount compensated during a disciplinary dismissal is 8,000 euros, compared to the 6,600 implied by an objective dismissal (which must legally be compensated for 20 days per year worked). Some estimates indirectly point to the existence of this trick.
Of course, the figures for the department headed by Yolanda Díaz are published with a huge delay (the latest correspond to 2022) and do not coincide with those of Social Security: it only records 149,863 disciplinary dismissals throughout the year (while Social Security reported 444,492). and they represent 29% of the total, not 55% like the affiliate files. Although, due to their greater relevance, these methodologies are the most used by economists, both methodologies confirm a significant increase in layoffs since the labor reform.
Will this stop the layoffs?
The question here is to what extent the Supreme Court’s decision will affect the statistics, if at all. The fact is that, since 2021, labor legislation has included more and more cases of nullity of dismissal and these have continued to grow. Some analysts attribute this to the rise of permanent contracts.but this argument is controversial.
This amounts to recognizing that companies abuse layoffs to turn newly hired permanent employees into substitutes for temporary workers. The fact is that permanent employment, despite the increase, has not done so with the same intensity as layoffs: these have doubled since 2021, with a rebound of 145% among permanent employeess. Disciplinary dismissals increased by 112% and 185% among permanent employees.
Which indicates that many companies not only continue to find a way to circumvent legal limits on dismissals (as happened in 2012), but after labor reform it has become practical to convert permanent jobs themselves into something much more volatile.
It seems clear that one of the pillars of this “easy dismissal” philosophy seems to be affected: the question is to what extent. Because the sentence does not transform the preliminary hearing into a “shield”. In this sense, the Supreme Court recalls that it is a procedure that precedes dismissal and that, although it is resolved by reaffirming the company’s decision, it does not prevent the party concerned from denouncing the dismissal a posteriori, thus reaching conciliation or the legal route. . In practice, this means that companies They are more likely to have the dismissal declared inadmissible.
Indeed, in the case that led to the Supreme Court’s decision, that of a teacher fired due to accusations of sexual harassment against his students, the question analyzed by the Supreme Court focused exclusively on the fact that the worker had not been authorized to defend his version. In short, the company handled the dismissal poorly. According to this rule of three, workers who undergo disciplinary dismissal without prior hearing They will have a clear way to try to challenge their dismissal, which will initially trigger legal proceedings.
However, as it is not a law, the judgment leaves many points open: requirements of this consultation period the consequences, which may vary from one case to another. The resolution comes as a surprise to the offices, as it is one of the “hot dishes” on the Supreme Court’s table, along with the additional severance packages. But as often happens, doubts remain about how to adapt to this new jurisprudence, especially without a legal change that clarifies it more clearly.
