He assures that the law approved by the Government in 2020 "does not contain a true prohibition" of firing.
The Government finalizes a rule to give the Labor Inspectorate control over the ERE.
The Supreme Court has rejected that the dismissals made during the Covid-19 health emergency can be automatically considered void, since the regulation approved by the Government in March 2020 "does not contain a true prohibition" on dismissal, nor does it contemplate nullity in the event of fraudulent dismissal.
The plenary session of the fourth chamber thus estimates the appeal presented before a ruling of the Superior Court of Justice of the Basque Country that opted for the annulment of the dismissals, understanding that they were prohibited and involved fraud, the high court has indicated in a note, where it clarifies that the text of the sentence will be made public in the coming days.
The room explains that the problem arose as a result of a decree law on urgent measures that contemplated that force majeure and the economic, technical, organizational and production causes that allowed the ERTE to take refuge during the pandemic "cannot be understood as justifications for the termination of the employment contract or dismissal". This is what this norm includes regarding "the frequently identified as a prohibition to dismiss", says the Supreme Court, which clarifies that the recourse to an ERTE does not appear as a "true obligation" either.
For this reason, it concludes that a dismissal carried out in those circumstances "should not be classified as void", except for circumstances that justify it, such as the violation of a fundamental right, non-compliance with the rules applicable to collective dismissal or some subjective situation that generates special protection. In addition, it adds that, in the event of a termination of the employment contract agreed by the company that lacks valid cause, it must be qualified in accordance with current labor legislation.
Sources from the Ministry of Labor have assured that they will analyze the sentence when it is published, but have recalled that both the implementation of the ERTE and the prohibition of justifying a dismissal for reasons associated with the health emergency were extraordinary measures to protect employment that have given good results.
Proof of this, they add, is that 3.6 million workers were protected by ERTE at the worst of the crisis and that the level of employment is now higher than before the pandemic, while the number of unemployed people is lower. The Ministry of Labor does not know how many people could have been fired during the pandemic without valid cause, nor how many of those dismissals have been appealed to the courts.
The UGT confederal secretary, Fernando Luján, has indicated that the Supreme Court has settled the debate on legislation that did not clarify whether the prohibition of firing during the pandemic due to force majeure or ETOP causes (economic, technical, organizational and production) entailed nullity (with the reinstatement of the worker) or the declaration of inadmissibility (with greater compensation).
"The Supreme Court has indicated that, since the dismissal that occurs for ETOP causes in the period of the pandemic is unjustified, it can be exchanged for compensation, which is known as unfair dismissal," Luján explained.
In line with this decision, UGT has considered it necessary to reopen the debate on how "easy and cheap" it is to dismiss unfairly, that is, without any valid cause, which is why it has sued Spain before the European Committee of Social Rights so that the dismissal is sufficiently dissuasive.