The Supreme Court will address in December the compensation for unfair dismissal questioned from Strasbourg

Said Charter, ratified by Spain, establishes in its article 24.b that workers dismissed without a valid reason have the right “to adequate compensation or other appropriate compensation.”

Just yesterday, the Committee of Ministers of the Council of Europe approved a recommendation to the Spanish Government in which it urges it to review compensation for unfair dismissal so that it really is a deterrent for the employer and so that it effectively repairs the damage caused to the worker.

This recommendation from the Council of Europe comes after the European Committee of Social Rights, in response to a claim made by UGT, ruled against Spainby 13 votes to 1, for its regulation of compensation for unfair dismissal, since it considers that this “violates” article 24 of the European Social Charter.

The CEDS resolution, known on July 29, establishes that compensation for unfair dismissal must be deterrent so that the employer does not violate the law and provides compensation to the dismissed worker.

Following this CEDS resolution, several rulings have complemented compensation for unfair dismissal with additional compensation.

The Council of Europe, in the recommendation that it approved this Wednesday, urged the Government of Pedro Sánchez to guarantee that the amount of compensation in unfair dismissals without justified cause is a deterrent for the employer and thus protects workers against these types of layoffs.

Likewise, in its recommendation, the Council of Europe calls on Spain to review and modify national legislation so that, as provided for in the Annual Political Plan 2024, it guarantees that the compensation granted in cases of illegal dismissal and any scale used to calculate it ” keep in mind the actual damage suffered for the victims and the individual circumstances of their case.”

Finally, the Council of Europe asks the Government to indicate the measures taken to comply with this recommendation in the next report on the follow-up of this decision.

In Spain, the maximum limit of compensation in case of unfair dismissal cannot exceed 33 days of salary per year of service, with a maximum limit of 24 monthly payments. In the event of dismissal for objective reasons and collective dismissal for economic, organizational, technical or productive reasons, the maximum limit cannot exceed the 20 days of salary per year worked, with a maximum limit of 12 monthly payments.

Although the Spanish Government defended before the CEDS that one of the objectives of establishing maximum remuneration limits in legislation is to provide a greater legal certainty to both parties to the employment contract, the European body noted in its ruling that “it cannot be excluded that the predetermined compensation may rather serve as an incentive for the employer to dismiss workers unfairly.”

‘In fact, in certain cases, maximum compensation limits could induce employers to make a pragmatic estimate of the financial burden of an unfair dismissal on the basis of a cost-benefit analysis. In some situations, this could encourage unfair dismissals,” the CEDS stressed in its resolution.

Compensate the worker dismissed without cause for the damage

At the same time, the resolution of the organization, which agreed with UGT in its complaint against the Spanish Government, affirms that the maximum limits set by Spanish legislation «they are not high enough to repair the damage suffered by the victim in all cases and to deter the employer.”

“The actual harm suffered by the affected worker may not be properly taken into account in relation to the specific characteristics of the case, among other things because the possibility of additional compensation is very limited,” noted the CEDS.

Consequently, the European body considers that the right to adequate compensation or other appropriate reparation in the sense established in article 24.b of the European Social Charter “is not sufficiently guaranteed” in Spanish legislation. “Accordingly, the Committee considers that Article 24.b of the Charter has been violated«, he concludes.

Both the resolutions of the Committee on dismissal in Finland, Italy and France, as well as that of Spain, establish that The severance pay cannot be known in advance by the employer.; It has to cover the damages caused to the victim and pay the processing salaries, which correspond to the date from the dismissal until the court’s ruling is known, which were borne by the company and represent an element of deterrence. .

In March 2022, UGT filed a lawsuit with the CEDS for the cost of unfair dismissal in Spain because the 2021 labor reform did not correct all the measures introduced in 2012 by the Government of Mariano Rajoy, which in its labor reform reduced from 45 to 33 days per year compensation for unfair dismissal and eliminated processing salaries.

The second vice president of the Government and Minister of Labor, Yolanda Díaz, has already stated on several occasions that it is her intention reform the cost of unfair dismissal in Spain to accommodate it to European legislation.