Between January and July 2023, there have been 820 dismissals due to unfair dismissal in Social Security, which represents a drastic reduction compared to the data recorded in the same period of 2022 in which they amounted to 1,625. In fact, it represents the minimum of the historical series that begins in 2012, the year in which the labor reform carried out by the Government of Mariano Rajoy lowered the cost of dismissal by reducing the compensation from 45 days per year worked to only 33. However, in recent months this matter has been the subject of some interventions by social agents and the Minister of Labor and Social Economy herself, who decided not to address unjustified dismissal in the negotiations of the 2021 reform.
Yolanda Díaz stopped talking about “abolishing the 2012 labor reform” and instead focused the conversations and the development of the new regulations on reducing the temporality of the labor market. A turn that did not come for free, given that ERC, EH-Bildu and BNG refused to support the new labor reform, which went ahead thanks to a wrong vote by a ‘popular’ deputy, while the unions – first UGT and later CCOO- presented a claim before the European Committee of Social Rights (CEDS) considering that Spain does not comply with article 24 of the European Social Charter, given that the employer can anticipate what the cost of dismissing a worker will be.
The number of unjustified dismissals reached its maximum in 2015, with more than 4,200, and since then this figure has progressively moderated, especially since the entry into force of the labor reform at the beginning of 2022. The rule promoted by the Department of Day penalized the temporary contract in favor of permanent contracts, which has increased the weight of the figure of the discontinuous permanent contract, which some experts consider has absorbed part of the labor flexibility that was previously noted in Social Security records in the form of sick leave. Unfair dismissal.
The increase in the signing of permanent contracts has also led to an increase in the number of people who leave Social Security for not passing the trial period, a fact that could camouflage fraud to simulate the old work and service contracts. However, they would only explain a small part of the drop in unfair dismissals. The professor of Labor and Social Security Law at the Jaume I University, Francisco Trujillo, emphasizes that the Labor Inspection (ITSS) has increased control over companies in recent years, which has led to Many strengthen their teams to ensure they comply with regulations, incorporating profiles such as the ‘compliance officer’.
“The increase in sanctions of the Law on Infractions and Sanctions in the Social Order and the control of the ITSS are factors that can cause companies to think carefully when dismissing a worker without just cause,” Valora Trujillo , who also highlights the damage that can be caused to the image and reputation of the company when facing a process of these characteristics. On the other hand, the professor of Labor and Social Security Law, Eva Blazquez Agudo, points out that the expansion of the assumptions under which a dismissal is declared null plays a role in the evolution of these data.
The last change was approved in June in decree 5/2023, which modified article 55.5 of the Workers’ Statute and included as causes for null dismissal being enjoying the eight-week unpaid period for the care of minors or having requested some element. of flexibility in the working day, in schedules or in-person presence. Two assumptions that are added to others related to motherhood (risk of pregnancy, breastfeeding, diseases caused by pregnancy or adoption), leaves of absence to care for children/relatives or changes made by a victim of gender violence in their work schedule or job.
Restorative dismissal
The leader of Sumar promised to move towards restorative dismissal before ending her ‘listening period’, she did so from the tribune of the Congress of Deputies when the nationalist left-wing parties asked her for explanations as head of the Labor portfolio and then presented a motion to recover the 45-day compensation prior to the 2012 reform. However, Díaz does not want to enter into a dispute over figures and clings to the rulings of different courts that have taken the compensation further in light of to the personal and work circumstances of the worker.
Precisely this is the philosophy that the minister wants to transfer to the regulations, establishing criteria such as age, whether she has dependent children, a mortgage to pay off or the years of professional experience to determine the amount that the company must pay to repair the damage caused. . I love the dismissal. It remains to be determined what legal form this figure would take, but the approach would be aligned with that defended by the unions in the writings to Strasbourg and which clash with the position set by the State Attorney’s Office. The body dependent on the Ministry of Justice stated that the 33-day compensation was dissuasive and offered “certainty and security” to both parties to the employment relationship. UGT hopes that the ECSR will rule before 2024.
