Severance payments in the European context
Despite unfounded rumors, the Council of Europe has not yet ruled on the complaint filed by UGT against the compensation system in Spain. These rumors are creating enormous confusion and are based on highly questionable arguments.
Recently, there has been a proliferation of statements of various kinds regarding the decision that the Social Rights Committee of the Council of Europe might have taken on the complaint lodged by the union UGT against the system of severance pay established in Spanish law. Interested leaks, the dissemination of inaccurate news, rumors and inventions of various kinds converge in the creation of a state of opinion that tries to establish the idea of the inevitability of a normative modification of the regulation of dismissal in Spain, as it would have been considered not to be in line with European requirements. This idea encourages government (and trade union) projects to reform the legal regime of dismissal, outside the social dialogue and with an umpteenth disregard for what was agreed in it (in the last labor reform, so praised for being the fruit of consensus, what was agreed to be modified was as important as what was agreed not to be modified and, in this sense, the tightening of temporary contracts was linked to the maintenance of the dismissal regulations).
This is a full-fledged ceremony of confusion, which calls for at least a few clarifications.
Firstly, there is no public decision by the European Committee of Social Rights (ECSR). It seems that the Committee has submitted its preliminary decision to the Committee of Ministers (of the Council of Europe, not of the European Union), which will have to carry out an initial examination at the earliest in May of this year. As a result of this review, the Committee of Ministers will be able to make a recommendation by July 2024 at the earliest. Following this recommendation, the decision of the ECSRC will be made public and may also be published four months after it has been referred to the Committee of Ministers (which would bring us to 29 July 2024).
Secondly, the European Social Charter is an international treaty which establishes commitments for the signatory states which are preferably formulated in generic terms, which constitute criteria to guide their legislative policy and which do not seek to enshrine subjective rights that can be invoked individually. Let us turn to the issue at hand: Article 24 of the Charter indicates that the right of workers not to be dismissed without valid reasons for dismissal, related to their skills or conduct, "or based on the operational requirements of the undertaking", must be guaranteed. And the right of workers dismissed without valid reason to "adequate compensation or other appropriate redress". International treaties enshrine minimum standards that should inform national laws and policies; they are not intended to provide a basis for uniform regulation for individual states or to prefigure a detailed or detailed legal regime to be imposed on them.
A minimum of good sense would require the rejection of a claim such as the one raised against Spanish law. But good sense is certainly not in fashion. And the ECSR has developed an "interpretative" work that has expanded, without mandate or power, the requirements of Article 24 of the Charter. Thus, it has been stated that national regulations, in order to comply with the precept, must provide that the judge has the power to demand the reinstatement of the worker dismissed without cause (without "valid reason"). Nothing is said about this in the Social Charter, and none of its precepts supports the alleged requirement that such reinstatement be provided for in legislation, and even that it be given preference over other remedies for dismissal without cause. And nothing is said about compensation for unjustified dismissal, only that it should be "adequate". And, let us not forget, reparation is required in cases of dismissal without a valid reason, the reason being considered valid when it is based on the operational needs of the company. Strictly speaking, therefore, the Charter does not even require compensation for objective or collective dismissals.
The ECSRC has established the criterion that compensation must be dissuasive and that it must allow full compensation for the damage suffered by the dismissed worker. Neither one thing nor the other derives from the grammatical interpretation of the precept, and the broad interpretation neither enjoys normative coverage nor is it admissible when it is a question of standards of protection contained in international treaties. The assessment of the adequacy of compensation must in principle be left to the national legal systems, which could only be "censured" in extreme cases, from this point of view, within the framework of the interpretation of the Charter. Moreover, it should not be forgotten that the ECSRC is not a judicial body (until 1998 it was called the "Committee of Independent Experts"), nor is it made up of judges, but of experts appointed by the Parliamentary Assembly on the proposal of the signatory states of the Charter. These experts issue opinions and the Committee of Ministers, if necessary, formulates recommendations, but in no case binding decisions. (Incidentally, the magical realism of our country provides curious anecdotes: the ECSR expert proposed by the Spanish government has been recused in relation to this case by the Spanish government itself).
Therefore, we should not be sold the lie that the Spanish legal system needs to be modified to adapt it to "European requirements" or to the Social Charter. This modification must be tackled internally, through social dialogue and the relevant procedures for creating regulations. Is there a desire to change the system of compensation for unjustified dismissal from the current system of fixed compensation to compensation for actual damages suffered, or is there a desire simply to return to the compensation scale of 45 days/42 monthly payments? If this scale is reinstated, would the requirement to compensate for the damage suffered disappear? In a system of compensation for loss, would it be possible to judicially consider the non-existence of loss, for example, in cases of immediate hiring of the worker under the same or better conditions, or dismissal of workers with pension rights already matured? What is sought is a minimum compensation in any case that could be complemented by compensation for the damage suffered?
All these questions require thoughtful and debated answers within the social dialogue and regulatory production procedures. Without forgetting that everything related to dismissal is intimately linked to recruitment and job creation, and that Spain is one of the few countries in which dismissal regulations are applied without requiring a threshold of workers to exclude small companies (as is the case in Germany, where the Civil Code applies to companies with less than ten workers, This is the case in Germany, where the Civil Code applies to companies with less than ten employees, which only requires notice, of increasing duration, for the termination of the contract, or in Italy, where the threshold is set at fifteen employees and, with the provision of specific regulations, in other countries such as France, Portugal or Great Britain), and that as a general rule our severance payments are significantly higher than in the rest of the countries.
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