The ban on dismissals by DANA approved by Yolanda Díaz may increase litigation between companies and workers

At the outset, it is worth remembering that the implementation of the prohibition on dismissing workers who are affected by DANA was approved in the second decree of measures of November 11. On the one hand, it was specified that the companies benefiting from the direct aid provided for on the occasion of the DANA, as well as those that take advantage of ERTE or partial reductions in working hours “will not be able to dismiss due to force majeure and for economic, technical, organizational reasons.” and production derived from the aforementioned atmospheric phenomenon. Specifying that failure to comply with this obligation entails the reimbursement of the aid received and the qualification of the dismissal as null.

However, this same decree lists the circumstances in which the worker’s absence from work would be justified: impossibility of accessing the workplace or carrying out work, as a result of the state of the roads, public transportation or the work center; for removal, cleaning or conditioning of the habitual residence, and recovery of belongings and other personal effects; due to disappearance or death of family members; or for attention to care duties derived from the DANA with respect to the spouse, de facto partner or close relative.

And regarding these exceptions that allow absence from work with the right to remuneration, the decree states in reference to possible retaliation that “during that period, the adoption of any unfavorable measure For the worker derived from the exercise of absence rights, it will be classified as null». However, despite the clarity of the provisions of the decree, it is these annulments that can lead to a legal controversy that ends up judicializing the eventual dismissals that occur in this context, in the eyes of labor lawyers.

Legal controversy

As the Labor partner at MAIO Legal explains to ABC, Angela Toroarticle 46 of Royal Decree-Law 7/2024 expressly establishes that companies benefiting from direct aid provided for on the occasion of the DANA, as well as those that take advantage of ERTE measures due to force majeure, will not be able to carry out dismissals for reasons derived from this atmospheric phenomenon. “In case of non-compliance, the dismissal will be classified as null and void,” he says.

For her part, and in relation to the paid leave regulated by article 42 of the Royal Decree, the labor lawyer also states that, during the period of their duration, the adoption of any unfavorable measure for the derived worker of the exercise of absence rights will be classified as null.

“The wording of the norm, therefore, speaks to us of an ‘automatic nullity’ in these cases,” says Ángela Toro, explaining, however, that “the automaticity granted by the norm itself certainly It is controversial from a legal point of view since the causes of nullity are expressly assessed and contemplated in articles 55.5 of the Workers’ Statute and 108.2 of the Law Regulating Social Jurisdiction and, however, these precepts have not been modified.

“Must wait for the resolutions of our courts“But, without a doubt, these regulatory differences pose a scenario of legal controversy,” says the expert, emphasizing that as in any dismissal in which the nullity of the termination decision is raised, the company has the possibility of asserting its defense. Of course, you must first prove that the dismissals are not related to objective causes or force majeure derived from the DANA atmospheric phenomenon and that they are unrelated to the enjoyment of the permits paid by the DANA. “That is, any dismissal unrelated to these causes or reasons, even if they are in the affected areas, should be governed by the usual criteria», warns the Labor partner at MAIO Legal.

In any case, this legal office assures that the regulations approved by this royal decree they do not have to generate greater judicialization of layoffs. “What will undoubtedly change is the approach to possible lawsuits, in which an increase in requests for annulment of dismissal is expected, but this does not mean a greater number of lawsuits,” says Ángela Toro.

However, the experts consulted by ABC do highlight the legal problems regarding the qualification of automatic nullity. Since these causes of nullity introduced by the norm are not contemplated in the articles 55.5 of the Workers’ Statute and 108.2 of the Law Regulating Social Jurisdiction. Therefore, these regulatory differences raise a scenario of legal controversy.

Negotiate the adaptation of the day

Regarding the worker’s possibility of forcing a day adaptation under their conditions (including, for example, shift changes) as long as the request is proportionate, jurists indicate measures to reconcile family and work life, among which are adaptations to working hours. can generate a legal conflictfundamentally when the personal and family needs of the worker collide with the productive and organizational needs of the company.

«The request for adaptation of the working day must come from the worker themselves in accordance with their personal and family needs. These needs, sometimes, collide with the productive and organizational needs of the company itself. Therefore, it is necessary to carry out a negotiation process to try to find a consensus between both parties,” explains Ángela Toro, from MAIO Legal.

The expert explains that the worker must duly justify and prove his or her personal and family needs. That is, the impossibility of organizing in any other way. «In this case, what the rule intends is to facilitate these permits in catastrophe situations that, being in the public domain do not require a high level of justification», he points out, pointing out that the company, for its part, must evaluate how to adjust its activity to said request and if this is not possible adequately justify the refusal.

«In case of discrepancies, it will be our courts those who carry out the called ‘judgment of weighing of interests’in order to determine which position should prevail,” says the labor lawyer.