Strasbourg delays its ruling on unfair dismissal in Spain until 2025

The European Committee of Social Rights, based in Strasbourg, will not issue a resolution to the complaint raised by UGT about the cost of unfair dismissal in Spain until the beginning of 2025, despite the fact that the entire allegations process has already concluded this month of August, as confirmed by sources from the organization to EL MUNDO.

“The current average time it takes us to resolve a claim that has not been considered a priority, as is the case of 207 raised by the General Union of Workers against Spain, is 35 months, almost three years, which is the most “It is likely that it will take us a year and a half to issue a resolution, until early 2025,” sources from the Department of Social Rights and the European Social Charter of the Committee, made up of 15 official members and an advisory team of 8 jurists, admit to this medium. , from its French headquarters.

16 months have already passed since the union led by Pepe Álvarez filed the claim before this Committee, on March 24, 2022, in which they alleged that the compensation system for unfair dismissal in Spain – which regulates a payment equivalent to 33 years per year worked-is unfair, insufficient and is not enough of a deterrent for the company to choose not to terminate contracts without just cause. Specifically, they denounce that the compensation is contrary to Convention 158 on the termination of the employment relationship of the International Workers' Organization and article 24 of the European Social Charter, which the Government of Spain ratified in its entirety in 2021.

The Committee admitted the claim in September, requested allegations from the International Organization of Employers – which were sent in December – and also from the Government of Spain, as a denounced party, which responded to Strasbourg in March of this year defending the current system.. UGT gave its reply in April and, on the 28th of last month, the Executive sent its latest allegations.

Once all this information has been received and analyzed, the Committee usually takes between six and seven months to prepare the draft resolution and, afterwards, it is voted on in one, two or three deliberations (on average there are two per process and the Committee appointment for a deliberation every 6 weeks) of the fifteen members of the Court, among whom is a Spanish woman, Carmen Salcedo, professor of Labor Law and Social Security at the University of Valencia.

Every year between 10 and 12 resolutions are issued and number 187 is currently in process, which means that the UGT resolution (number 207) still has 20 to go, plus those that are declared priorities that “sneak” into this process. and will be processed in advance.

Although we will have to wait almost a year and a half to know the result, in Strasbourg they advance that the jurisprudence to date and the precedents of France and Italy seem to point to a possible favorable result for the unions against the current legislation.. In these two countries the national unions filed similar complaints and the Committee considered that the laws were contrary to the European Social Charter: in the case of France, unanimously, and in that of Italy, with 11 votes in favor and 3 against. were not argued, as they did not ask to include their “dissenting opinion”.

A binding resolution?

The pronouncements of this Committee motivated, in the case of Italy, the Committee of Ministers of the Council of Europe to adopt a resolution, while in the case of France a recommendation was issued last week, on September 6, since in recent years this route has been chosen. In both, they ask the respective countries to take their resolution into account..

However, in neither of the two countries – although in France there has not yet been time – the resolutions have not motivated a change in legislation to modify the cost of dismissal, but when unfair dismissals end up in court, the courts of those countries are forced to take into account the Strasbourg position.

In the case of Spain, there have already been courts that have relied on the European Social Charter to accept compensation for dismissal 'à la carte', in which the personal characteristics of the affected person are taken into account, and it is foreseeable that the Committee will rule. in favor of the unions and give more reasons to the judges to follow this criterion, while the Government – depending on the sign – could use it as a pretext to negotiate in social dialogue a change in the rules of the game.

After UGT's claim, CCOO presented another similar one (218) with the same complaint. The Strasbourg Committee could decide to combine both procedures into one and issue a single resolution, which would benefit the Unai Sordo union in terms of time, although if they raise different things it could process them separately..

The Committee accumulates a delay in processing complaints – it still has 42 registered to be resolved – because it suffers from a lack of personnel while there has been an increase in activity: before it received 8 collective complaints a year and now about 20, while that the staff has not grown.