The PSOE and Sumar are committed to reforming the dismissal. This is one of the most relevant aspects of the Government’s agreement, because it opens a debate that some economic actors consider to be out of date – especially after the 2021 labor reform, where it does not exist changed. The political commitment of the parties is as follows: “Establish guarantees for workers against dismissal, comply with the European Social Charter and strengthen the cause of cases of termination of the employment relationship.”
The agreement did not detail specific measures, and the competent ministry (Labor) did not specify the fine print. However, due to the latest statements from those responsible and the wording of the agreement, it is possible to analyze what are the main lines of a change in the future. The experts consulted agreed to point to a minimum wage as a visible solution.
“The commitment of the two political forces,” said the Secretary of State for Employment, Joaquín Pérez Rey, last week, “is to faithfully follow the European Social Charter regarding dismissal.” And what does this text show about it? It recognizes “the right of workers dismissed without valid reason to adequate compensation or other appropriate relief.” In the opinion of the UGT, where the headquarters Pérez Rey gave his speech, the current Spanish regulations do not ensure this payment, especially if the work relationship is short.
For this reason, the union filed a claim with the European Committee of Social Rights in May 2022, the resolution of which is expected at the end of the year. And this body already ruled that the French and Italian system did not pay enough, under conditions comparable to Spain. During the last legislature, the Ministry of Labor stated many times that it will comply with what the Committee dictates, but the agreement with the Government is still ongoing, because it involves the reform of the text, and not the interpretation. CC OO also filed a similar claim, which also addresses other derivatives such as strengthening the worker’s reinstatement assumptions.
Pérez Rey stated that the system should move towards “a restorative and dissuasive dismissal; “You cannot fire people on a whim.” Work, “an attack on its citizens because those who do not work do not exist, in many cases they no longer exist.” Pérez Rey justifies this statement by explaining that identity, in general, is based on work: “We say I am a bricklayer, waiter or teacher. We do not say I will, but I am. Therefore, if a person is unjustly deprived of work, they are not only deprived of material benefits , but also to one of the strongest identities that humans can have.
Is it expensive to get rid of Spain?
With the current system, the maximum compensation for unfair dismissal in permanent contracts is 33 days’ salary per working year. This is the limit included in the Spanish labor law since 2012, when the Government of Rajoy cut 12 days compared to the 45 in force until then (which was maintained in the periods before the change). Statistics from the Ministry of Labor, from 2021, show that the average compensation is 11,417 euros, for 444,102 affected workers. And it was a year of great creation and work. The experts agree when they notice two speeds: the system protects workers with a lot of seniority and very little of those who have just started.
Cristóbal Molina, professor of Labor and Social Security Law at the University of Jaén, believes that these figures are the best proof that dismissals are cheap in Spain: “It is unthinkable that there would be so many dismissals if they were expensive. . For short employment relationships, dismissal is very cheap. ” In addition, the majority of employment regulations (at least 68%) are resolved through an agreement, which is usually in the middle between the worker’s demand (the maximum allowed by law) and the minimum point that originally proposed by the company.
In July 2022, the Committee agreed with the union of the French complainant because the country’s compensation system for dismissal without cause “establishes mandatory compensation brackets, depending on the seniority of the worker and size- on the company (as in Spain), considering that it opposes the right to protection during termination of employment, both regarding adequate compensation in the event of unfair dismissal and the right to mandatory reinstatement.” The Committee also decides in favor of the claims of the union of Italy or Finland.
Businessmen often argue that Spain’s tax system sets higher rates than other European neighbors. And they are right, but the experts always remember that the system cannot be analyzed based on this variable alone, that there are other important factors such as how much protection it has, the strength of the absence work, the notice period, if there are processing salaries. . .All things considered, like the OECD statistics measuring the rigidity of employment protection, Spain (2.43 points) is below the Czech Republic (the highest figure, 3.03), Portugal (2.87) or France (2.68), but more than Germany (2.33) or the United Kingdom (1.9).
What changes are coming
“An obvious change,” said Ana Gómez, president of the National Association of Labor Workers in Spain (ASNALA), “is to create a minimum payment.” This expert believes that the compensation for long-term claims is “high” and fulfills a “reparative” function, but “the issue is in the minimum parameter, because some people receive a small amount .” Setting a minimum “can be a solution.”
Antonio Álvarez, professor at the Department of Labor and Social Security Law at the University of Cádiz, agreed: “The most conservative reform that wants to comply with what the European Social Charter says must at least establish a minimum payment. As there is a maximum limit, a minimum limit. ” Molina considers that this new element “is the simplest change for the legislator; continue the current system and add an additional fee that does not prevent, so that the entrepreneur should think twice. CC OO defends the establishment of a minimum compensation, like the UGT, amounting to six months’ salary for unfair dismissal.
Álvarez believes that change should not be limited to the minimum that acts as a floor. “My proposal starts from a minimum payment of severance, but we must also consider an additional one that does not depend on seniority, but on the illegality of the behavior.” In these lines, it is defended that the compensation will be considered based on the circumstances of the worker, if there is no justification for the dismissal. This has already happened in a pioneering decision known at the beginning of the year, which provides compensation higher than that assessed to a worker who was fired before the pandemic. The judge considered the damages for losing his job immediately.
The starting point of the reasoning of Álvarez and Molina is that the cost of dismissal is very unpredictable, up to the point where the company can establish a cost-benefit. “It creates an evil, it makes the removal of a normal way of managing personnel. This complete predictability is rare compared to other countries. In an ecological crime does not seem reasonable for us the expectation of how much the company will have to pay, since then it will be known how much the violation will pay and the penalty will not be deterred,” the expert from the University of Cádiz indicated.
Gómez is different: “One of the most accurate figures in the law is severance pay. That it is something known is a positive thing, because it provides a lot of legal security. “They are not fired arbitrarily, for the most part there is a reason, and if it is not fixed.” Molina countered by asking for legal security “for the worker: now the employer knows how much it costs him to fire, but where is the right to protect the employee, who can be fired without reason for 800 or 1,500 euros?”
Another element mentioned by the consulted experts is the processing salary (the one that a worker will receive if he challenges the dismissal and ends up being declared without cause or without reasonable cause), a figure that damaged by the reform of 2012. “You cannot comply with the Letter if we do not recover the processing salaries. It is unstoppable, a clear injury because it is equivalent to wages that are unjustified withholding of the worker,” said Molina. Gómez believes that a reform in the spirit of the one shaped by the PSOE and Sumar pact can also address the cause: “In 2012, in a way, the justification for the dismissal was simplified. I think it is likely that a more “There is room for more precision,” added Álvarez.
Rejection of business
Employers do not even consider this issue a matter of debate. “We have reached a labor reform agreement where there are issues that have been agreed upon and others that have not been discussed because they are in the agreement. Therefore, we have nothing more to say,” commented the president of the association, Antonio Garamendi, at the beginning of October. He said this at a colloquium in which union leaders also participated. “We do not agree on what is not being dealt with, but this does not mean that we will not be dealing with it. In the labor reform debate there are issues that do not want to be the subject of negotiations and that is why they are not,” answered the general Secretary of the UGT, Pepe Álvarez. His CC OO counterpart, Unai Sordo, said that Spain “must rethink its dismissal model, so that it is the last option for the company.”
It is also not an issue that excites the PSOE, which does not even mention it in its electoral program. Social Security Minister José Luis Escrivá said in April that he was “very comfortable” with the system “in the terms it is at the moment.” He indicated that “a balance must always be sought between the various elements,” and that, when dismissal compensation is designed, the elements of employment incentives must also be “internalized.” Any change in regulations would require the affirmative vote of right-wing nationalist parties.
It can be seen that, in the medium term once the legislature begins, the Ministry of Labor will create a group of experts to propose how to change the dismissal, as the department of Yolanda Díaz has already done for other regulatory change. Sources in the ministry indicated that this initiative has not yet started. “It is important to have different opinions, when it is done in a plural group,” concluded Gómez.