On January 30, the Superior Court of Justice of Catalonia (TSJC) signed a ruling that could mark a before and after in terms of severance pay in Spain. This court raised the legal compensation that corresponded to an unfairly dismissed worker —from 33 to 48 days per year worked— considering that the amount that corresponded to her was “insignificant” and did not repair the damages caused by the loss of the position of work nor was it a deterrent.
It was the first sentence in Spain in which the judge raised the legal amount of compensation in an unfair dismissal. But there are many other first instance rulings from the Social Courts that recognize the right to collect greater compensation, but the higher courts of justice, as has happened in the case of Madrid, have knocked down these additional reparations in unfair dismissals.
However, according to different legal sources consulted, it is a matter of time before there are more judges of higher instances that recognize these compensations that are greater than the legal ones.
In this way, these sources ensure that the dismissal claims that claim an “additional compensation” together with the legal compensation are increasing substantially and are beginning to become general in many law firms.
To make these claims, the labor activists rely mainly on the regulations included in the European Social Charter, which in its article 24 includes “the right of workers dismissed without valid reason to adequate compensation or other appropriate reparation.” This regulation was ratified by the Government and published in the Official State Gazette (BOE) on June 11, 2021. With this, it then became a regulation directly applicable by the judges if they so deem so. Likewise, these sentences are also usually supported by ILO Convention 158, which includes a similar precept.
With this strategy of claiming additional compensatory compensation, the labor unionists would also be reproducing the current scheme of null dismissals in claims of unfairness.
For such dismissals, which are declared void today, the Supreme Court has said that additional compensation for damages is automatic.
Although, the amount of the amount is at the discretion of the judge, which is usually determined by what the worker proves. Although if the damages are not proven, the judges usually resort to the Law of Infractions and Sanctions of the Social Order (LISOS) and consider it as a very serious infraction, setting the additional compensation for damages between 7,000 and 10,000 euros, specify these sources.
However, this growing tendency to request additional compensatory compensation may also have other effects, such as the increase in legal proceedings to the detriment of conciliation; and the door is opened to greater legal uncertainty with more arbitrary global compensation in its additional part, explain the consulted labor experts.
The judges, waiting for the Council of Europe
Last October, the European Committee of Social Rights of the Council of Europe accepted for processing a claim by the UGT union against the Spanish regulations on compensation for unfair dismissal. For UGT, the Spanish regulation is not adequate, as required by the European Social Charter, because it is not compensatory or dissuasive enough, especially in the cases of workers with little seniority in the companies. The parties (the Government and the employer) have already presented their allegations to this lawsuit to reject it. Now the judges await the resolution of the Council of Europe, because if it urges a legal change they will be able to use this argument directly and raise the compensation.
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