Legality of redundancies as a result of Covid-19

The current social and health care situation that we have had to live through as a result of Covid-19 has not only given rise to growing job uncertainty, but has also generated great insecurity among the workers who have been relegated from their jobs. This exceptional situation is at best reflected in the case of workers who have been forced to go on ERTE, and at worst in the case of those who have lost their jobs.

Are dismissals due to covid null and void or unfair?

In order to alleviate the destruction of employment, since the beginning of the state of alarm, the government has adopted different measures regulating temporary contract suspensions, the first of which was Royal Decree-Law 8/2020 of 17 March. However, no measures were taken to protect workers from individual dismissals. In the absence of case law, each case of dismissal has been dealt with on an individual basis. Whether the dismissal is null and void or unfair has been left to the discretion of the Social Court to which the case is referred.

What is an unfair dismissal?

A dismissal is considered unfair when a company decides to terminate an employee's employment relationship without a justifying cause. The most common grounds for unfair dismissal include the following:

• Failure to comply with the legal requirements set out in articles 51-55 of the Workers' Statutes.
• When the reasons given by the company do not justify the dismissal.
• When the dismissal is made for discriminatory reasons (racial, age or sex) or for violating fundamental rights, the conditions of workers' representatives or the rights of maternity and reconciliation of work and family life.

If the dismissal takes place under any of these circumstances, it will be considered null and void and the company will be obliged to reinstate the employee. In the event that the company does not accept the employee's reinstatement, it must pay the corresponding severance pay.

What compensation is payable to the employee?

Since the reform of 12 February 2012, the severance pay that corresponds to the worker is the equivalent of 33 days' salary per year worked. However, it must be taken into account that before this reform, it was 45 days per year of work, therefore, if the worker's contract was produced before the reform and ends after it, he/she will be entitled to the application of both scales. In any case, the corresponding compensation can never exceed 42 monthly payments.

What types of dismissals are there?

There can be different reasons why a company decides to terminate an employment contract:

• Disciplinary dismissal: This occurs when the employee fails to comply with his/her work obligations in such a way that his/her behaviour is considered serious and culpable: unjustified absences from work, disobedience, verbal or physical aggression, poor work performance, drunkenness or drug addiction, sexual harassment...
• Objective dismissal: When a company's decision to terminate an employment contract is based on legal grounds, the dismissal is considered to be objective. These causes are set out in the Workers' Statute: ineptitude or unsuitability of the worker, economic, technical, organisational or production reasons. Whatever the reason for dismissal, it must always be duly justified by the company.
• Collective dismissal: When the dismissal affects a certain number of workers, an ERE is required and for this to be effective, the company must comply with the legal formalities and application of the Workers' Statute.

Can an objective dismissal be unfair?

The termination of a contract for objective reasons can be considered unfair when the company does not comply with certain requirements. The company is obliged to deliver the letter of dismissal at least 15 days before the dismissal becomes effective and must also explain the reasons for the dismissal and deliver the corresponding severance pay at the same time.

How to act in the event of dismissal?

The first thing to clarify is that any dismissal must be communicated to the worker in writing; an oral dismissal has no legal validity. When an employee is affected by a dismissal from work, he/she must:

• Demand a copy of the letter of dismissal before signing anything.
• Check that the two letters are identical and, above all, that the dates match.
• When signing the document, it is advisable to write "Not in agreement" before signing. In this way, possible complaints will be made more easily.
• It is also advisable that the signature is accompanied by the date in order to have a record of the moment of the written communication of the dismissal. This point is important as there is a period of 20 working days in which to present allegations or apply (if applicable) for unemployment benefits.
• If in doubt, seek legal advice on how to proceed.

Dismissals by Covid

Once the types of dismissals for which a company can cancel an employment contract are known, it only remains for us to point out that the Spanish government, by means of Royal Decree-Law 30/2020 of 29 September, has extended the prohibition of dismissing a worker for Covid-19 reasons until 31 January 2021.

However, despite this new provision, we are all aware that in times of instability or crisis, it is generally in times of instability or crisis that the most labour abuses occur and there are many people who are currently involved in a complicated and confusing employment situation.

The vast majority of workers do not really know what their rights are, so having good legal advice is of vital importance to know what legal rights they are entitled to and to be able to act in the event of unfair dismissal.