Spain: Dismissals that do not comply with what is known as the “dismissal ban” during the pandemic are not automatically null and void

The Supreme Court judgment was delivered in a cassation appeal for a definitive ruling on a point of law, led by Garrigues lawyers.

The labor court that heard the case at first instance had declared the dismissal to be unjustified.

Following an appeal by the worker to the Labor Chamber of the Basque Country High Court, the high court held the dismissal to be null and void, following the stance taken in other prior court proceedings.

With its recent judgment, the plenary session of the Labor Chamber of the Supreme Court has now settled a legal debate which has had a broad impact on legal theory and case law since the beginning of the pandemic.

The Supreme Court press release states as follows:

“The judgment, the wording of which will be released in the next few days, concludes that the dismissal in disregard of the provisions of that law should not be classified as null and void unless there is a specific justification for doing so (breach of a fundamental right, evasion of procedural rules on collective dismissals, a personal circumstance that warrants special protection). The following reasoning is given: 

1) The law itself does not contain a true prohibition, nor do the consequences of a fraudulent dismissal entail its nullity, unless there is an express legislative provision in this regard (as occurs in the case of evasion of collective dismissal procedures). Likewise, using measures as record of temporary employment regulation is not set out as a true obligation.

2) Classifying the dismissal as null and void is ruled out because the provisions on the subject (in both the Workers’ Statute and the Labor Jurisdiction Law) disregard the case of fraud (except for dismissals carried out “in stages” to evade collective dismissal procedures).

3) Where a contractual termination has been agreed by the company without a valid reason, it should be classified in accordance with the labor legislation in force, both in view of the intricacies of this area of the law and by reference from article 6.3 of the Civil Code (which classifies acts contrary to mandatory legal rules or prohibitions as null and void, “unless such rules or prohibitions provide otherwise in the event of breach”)”.