Over 50 in Spain: Will a Dismissal Be Declared Null? Companies Panicking

Published on 27 May 2021

If you have not heard of it yet, surely you will soon: it is none other than Ruling no. 323/2020 of 18 November, handed down by Labour Court no. 33 of Madrid. From November? Yes, despite its “age,” it has been generating discussion of late due to dismissals of workers over 50. This can be summarised in two simple and terrifying words for companies: null and void.

These two words make companies tremble. And since the abovementioned ruling was handed down, “null and void” have been used to generalise its content, resonating ever more strongly in society and generating a false sense of fear among companies when making the decision to “let go” workers over 50.

Dismissals of workers over 50 are not, then, always null and void? Not in the least. Far from generalising, Ruling no. 323/2020 decides a very specific case which occurred at a multinational tech company. It deals with the dismissal of six workers who are, with the exception of one, over 50 years old. The basis for their dismissal was, the company alleged, objective economic reasons (decrease in sales) and organisational reasons (consequent need to restructure the organisation of the departments in which each of the workers rendered services).

However, the factual story of the aforementioned ruling includes economic data for the company (operating result before taxes) that in the eyes of the judge would suggest a strong financial situation. Such economic data would, thus, contribute to discredit the reality alleged by the company – a reality which, in the judge’s opinion, was not successfully proven by the company on the day of the proceedings.

To the above, two other facts must be added that are not in the least favourable for the company. The first, included in the factual background of the ruling, indicates that, according to the objective data extracted from the annual accounts of the company, in 2018 the percentage of workers dismissed who were over 50 years was 23.07% versus 6.5% representing workers between the ages of 30 and 50; a year before the events in question took place, in 2019, the percentages fell to 13.7% versus 4.9%, respectively. The second fact, also included in the factual background of the ruling and in the opinion of the judge, would serve precisely to explain said percentages: an alleged company policy with a philosophy of generational staff renewal for which the maximum “suitable” age to render services in the company was between 50 and 60 years.

All of this together was what led the judge to conclude that there was “sufficient evidence to reasonably suspect that the cause for dismissal of the plaintiffs was their age,” above all given that “there were no reasonable causes to justify such decision,” and, consequently, to apply, among others, Article 17.1 of the Workers’ Statute. This is a precept according to which any clause, pact, measure and/or decision made unilaterally by the business owner that gives rise to situations of discrimination on the basis of age, disability, gender, origin, etc. is considered null and void. As a result, in the case at hand, the dismissal of a worker allegedly motivated exclusively by his/her age would, indeed, be considered as discriminatory and, as such, null and void.

Thus, the dismissal of a worker over 50 is not considered de facto and in general “discriminatory.” However, the set of factors surrounding said dismissal, the context and the particular circumstances of the two parties, which determine and, ultimately, lead to a dismissal of such characteristics, may be considered null and void.

In conclusion, may the contents of Ruling no. 323/2020 serve as an example, not as a recipe for panic when a dismissal is necessary. It should be taken merely as a “warning” to be considered in the exercise of managing power inherent to all companies.