I have filed a complaint with my company: can they dismiss me? This is what the Constitutional Court says.

If you wish to assert your rights as an employee against your company (holidays, work-life balance rights, working hours, etc.), you should be aware that you have a guarantee called ‘guarantee of indemnity’ that protects you from reprisals by the company due to the claim you have made. The Constitutional Court (TC) has analysed a case involving a worker who was dismissed for having filed a claim, and the TC has ruled that the dismissal is null and void. We are going to analyse all the details of this recent ruling and the guarantee of indemnity so that you know what it consists of.

Is my dismissal invalid if it is due to retaliation by the company for a complaint?

The answer is that it depends. For a time, in order for the guarantee of indemnity to apply, one of the following conditions had to be met:

• A complaint had to be filed with the Labour Courts.
• A complaint had to be made to the company announcing that legal action was going to be taken.
• A complaint was made to the Labour Inspectorate.

In all these cases, the Constitutional Court considered the dismissal null and void if, after the complaint, the worker was dismissed, because it was considered a direct reprisal due to the complaint. Therefore, the company had to pay the corresponding compensation or reinstate the dismissed person.

However, the Constitutional Court now also includes cases where the complaint is filed with the Works Council or Staff Representative, as appropriate.

Can I be dismissed if I file a complaint with the Works Council?

This is the case that has been analysed by the Constitutional Court. It concerns a worker who filed a complaint with the workers' representatives to defend her labour rights, which is their mandated function.

The company decided to dismiss her and, after several legal proceedings, the worker filed an appeal for protection with the Constitutional Court. This court considered that Article 24 of the Spanish Constitution, which regulates the right of individuals to effective judicial protection by judges and courts, had been violated and, as a result, upheld the ruling of the Social Court of Las Palmas de Gran Canaria, which recognised the violation of indemnity, and also declared the dismissal null and void.

The case was as follows:

• The worker filed a lawsuit in September 2021 because she considered that her guarantee of indemnity and right to freedom of association had been violated when she was dismissed from the company where she worked.
• The worker had complained to the chair of the works council, who spoke to the person in charge of the company.
• The worker was subsequently dismissed and filed a lawsuit with the labour court, which declared the dismissal null and void and ordered her reinstatement and financial compensation.
• The case was later brought before the High Court of Justice of the Canary Islands, which declared the dismissal unfair but did not consider that the guarantee of indemnity had been violated.
• As a result, the worker lodged an appeal with the Social Chamber of the Supreme Court, which dismissed it.
• Finally, an appeal for protection was lodged with the Constitutional Court, which admitted it and considered that the guarantee of indemnity had been violated.

What is the guarantee of indemnity?

We have briefly touched on this in this article, but if we go into more detail, we can say that it is a legal principle that prohibits a company from taking any action against an employee who exercises their labour rights and has filed a legal or administrative claim to that effect.

In short, it is about ensuring that, as an employee, you can exercise your labour rights without fear of being dismissed or suffering negative consequences.

How can I file a complaint with my company?

If you believe that your employment rights as a worker have not been respected, you can file a complaint, as we have seen, with:

• The company directly, indicating that you will take legal action.
• The Labour Courts.
• The Works Council or Staff Representative.
• The Labour Inspectorate.

If you file a claim with the labour courts, you can request:

• That the dismissal be declared null and void.
• Compensation for damages.
• Another measure to repair the damage suffered.

On the other hand, you can also request precautionary measures while the case is being analysed by the court. For example, this could be the suspension of the worker's dismissal.

In any case, it is important that you seek the help of an expert employment lawyer to analyse your case in depth and advise you on the options available and the viability of your claim.

What rights does the guarantee of indemnity protect?

Various rights regulated by different regulations are protected. The most relevant are as follows:

• Right to health and safety. As a worker, you have the right to carry out your activity in a safe environment and, if you complain about unsafe conditions, the company cannot take reprisals against you. For example, imagine that you work in a factory and you believe that the safety measures are insufficient and you complain. If the company assigns you to a less skilled position and reduces your salary, you could claim under the indemnity guarantee.
• Right to work-life balance. If you request measures to balance your personal and family life, the company cannot retaliate against you.
• Right to non-discrimination. Workers cannot be discriminated against on the basis of gender, race, religion, sexual orientation or other characteristics.

In short, the guarantee of indemnity means that as an employee you can defend your employment rights without fear of negative consequences from the company. However, there are times when such reprisals do occur, and if you need to file a claim, it is advisable to seek the help and advice of an expert labour lawyer. Contact our team of labour lawyers and they will analyse your case.