Alejandra Olcese

Updated Monday, March 25, 2024-16:55

  • Consequences The end of the 33 days per year worked: Spain faces à la carte dismissal compensation

  • Conflict UGT calls for the immediate dismissal of the State lawyer appointed by Rajoy to represent Spain in Strasbourg

The

European Committee of Social Rights

(CEDS), based in

Strasbourg

, has already made a decision on the lawsuit filed by

UGT

against the Kingdom of Spain for the regulation of

dismissal

compensation and at the end of this week it will be transferred to the parties. and will also send it to the

Committee of Ministers of the Council of Europe,

which will have to issue a recommendation urging the Government of Spain to legislate accordingly. After

four months

from that moment, the CEDS will publish its resolution, but if the Committee of Ministers issues its recommendation before that period, then the CEDS will publish its report as well.

As EL MUNDO has learned from Committee sources, it was in the plenary session held last week, from March 18 to 22, when the organization decided on the merits of the collective claim that UGT had presented in 2022. At the end of this That same week they will send their decision on whether

or not the cost of dismissal in Spain violates the European Social Charter

to both the UGT and the Ministry of Labor, which will not be able to make the resolution public. Simultaneously, they will send it to the Committee of Ministers of the Council of Europe - made up of the foreign ministers of the member states - which will have to study the report and issue a recommendation to the Executive. This will likely be issued after

the report is made public in

July .

"In accordance with its regulations, the European Committee of Social Rights (CEDS) has approved different decisions, including the decision on the merits of the collective claim No. 207/2022 General Union of Workers (UGT) vs. Spain. This decision will be published four months after its communication to the Committee of Ministers of the Council of Europe. The CEDS pronounces itself in this decision on

whether there has been a violation of the Social Charter or not

, and reasons its decision. The Committee of Ministers of the Council of Europe makes a resolution based on the information provided by the CEDS," the organization based in the French city tells this medium.

The conflict dates back two years, when, after the signing of the European Social Charter by Spain, the union led by

Pepe Álvarez

sued Spain because our taxed system of dismissal compensation -20 days per year worked for appropriate dismissals and 33 for inappropriate ones - was not, in his opinion,

fair

or sufficiently

dissuasive

to prevent companies from opting for layoffs.

Their claim came after unions in other countries, such as

France and Italy,

had filed complaints and the Committee had agreed with them, urging their respective governments to change the legislation.

Although there were two precedents, the deadlines followed by this Committee prevented an early resolution and, in fact, in September of last year this newspaper learned that a resolution was not planned until the

end of this year or the beginning of next year

.

The news led UGT to even ask the Committee what the delay was due to and, according to union sources, it was then able to learn that the representative of Spain before that Strasbourg court - who was appointed by Mariano Rajoy - had presented a challenge against a of the people who made it up (the Spanish Carmen Salcedo) with the alleged objective of delaying the deadlines, alleging that she was not an impartial member to resolve.

The union has since publicly denounced the alleged interference and has questioned the integrity and independence of this Committee, going so far as to request the representative's dismissal last Friday. With the focus on the process,

the Committee has decided to accelerate

- there are still ten collective claims ahead of those of UGT that have not yet been resolved - and close the matter as soon as possible.

Resolution favorable to UGT

Although it cannot officially reveal the meaning of its resolution, both the precedents of France and Italy and the conclusions that they have recently included in their report on Spain lead one to think that they

will almost certainly have agreed with the UGT.

"The Committee observes that both compensations [that of fair dismissal and that of unfair dismissal] are subject to

a maximum limit

. The Committee points out that the maximum limit of the compensation scales does not allow a worker to be granted a higher compensation

based on all the circumstances

, since the courts can only order compensation within the limits of the scale (...) The Committee considers that, even if reinstatement is the general rule, in cases where reinstatement is impossible,

the judge does not can grant compensation that is adequate and compensates

for all the damages suffered," he stated in his report on Spain, published last week.

In it, it reviews different claims in which it has made similar considerations, such as claim No. 106/2014 relating to Finland, in which the Committee considered that the limitation of compensation to 24 months of salary, provided for by Finnish legislation was

insufficient

, as it did not allow for adequate compensation within the meaning of Article 24 of the Charter. It also recalled claim No. 158/2017 against Italy, in which it considered that the pre-established amounts of compensation (with a limit of 12, 24 or 36 monthly payments depending on the case, and six for small companies) made the compensation was "

inappropriate over time in relation to the harm suffered

", as well as others relating to French legislation.

In this way, it is more than foreseeable that Strasbourg will agree with UGT - CCOO also presented a similar claim that is pending resolution - and invite the Spanish Government to change the legislation. The second vice president and Minister of Labor,

Yolanda Díaz

, has already indicated on several occasions her willingness to change the regulation of the cost of dismissal and, until now, she has said that she will do so after negotiation with the social agents.

What the unions seek is to recover

compensation of 45 days

per year worked for unfair dismissals, to which

a bonus would have to be added depending on the conditions

of the person dismissed. They are looking for a system similar to that of compensation when a traffic accident occurs, so that the culprit pays more depending on the damage caused to the dismissed person (he who has a broken leg does not receive the same as he who has a scratch). The idea is to design a table that establishes how much compensation should be increased based on certain characteristics of the dismissed person - linked to their age, gender, physical condition, family, etc. -.

However, if these tables are not predefined, this would open the door to the judge, in dismissals that end up in court,

deciding

what type of compensation each person deserves based on their peculiarities, which would be a sort of à la carte compensation.

Companies, employers and law firms fear that a change in this sense would cause an

increase in the judicialization

of dismissals and have an

impact on hiring,

since it could be more difficult and more expensive for companies to make unfair dismissals, and would generate

uncertainty

by not knowing in advance the cost they would have.