Spanish Courts Put The Prohibition to Dismiss Due to Coronavirus and The Employment Safeguarding Clause to The Test

Published on 2 June 2021

On 28 March 2020, in the midst of the state of alarm in Spain, Royal Decree-Law 9/2020 of 27 March entered into force. It adopts complementary measures in the context of employment to mitigate the effects of COVID-19. These regulations include, inter alia, in Article 2, the “prohibition” to dismiss when it is due to force majeure or economic, technical, organisational or production-related causes (ETOP) governed in Articles 22 and 23 of Royal Decree-Law 8/2020 of 17 March.

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Additionally, the Sixth Additional Provision of Royal Decree-Law 8/2020 of 17 March contemplates regulation to safeguard employment for those cases in which a temporary collective dismissal process (ERTE) due to force majeure has been carried out as per the provisions of Article 22 of the aforementioned regulation.

Such prohibition and the safeguarding of employment clause, not free from debate, have recently been subject to analysis by Labour Court no. 31 of Barcelona in the proceedings Dismissals/Removals in General Proceedings 754/2020-C and ruling 59/2021 of 5 February.

In order to situate ourselves in the context in which the aforementioned review takes place, we must begin with the fact that, in the afore-cited proceedings, the first-instance labour court analyses the dismissal of workers who were included in a collective dismissal procedure (ERE) based on ETOP causes. The dismissals were effective on 31 August 2020. The company, in the hotel business, had initiated, on 14 March 2020, an ERTE due to force majeure, citing Article 22 of Royal Decree-Law 8/2020 and on 24 April 2020 it submitted a request for pre-insolvency to the mercantile courts.

In this context, in light of the events, the first instance judge considered that a dismissal may not be considered unfair when the company, beforehand, already adopted the necessary measures to attempt to overcome the business lull it was going through, and all of this independent of the fact that COVID-19 was one more element to worsen the negative economic situation of the company. In addition, in these proceedings it is not arguable that the negative economic situation was present before the pandemic, since the company had been recording losses since 2015. It was true that the pandemic caused by COVID-19 and the restrictive measures imposed, above all in the hotel sector, were yet another reason to justify the collective measure implemented.

If the dismissal carried out is declared unfair, it would mean unjustifiably punishing those business owners who, in spite of the losses recorded, have done everything possible to maintain their activity and, consequently, the work positions of their staff. Furthermore, and in spite of the fact that in March 2020 the company saw it necessary to perform an ERTE due to force majeure in relation to Article 22 of Royal Decree-Law 8/2020, the first instance judge insisted that the causes that truly justified the ERE were ETOP causes.

Finally, and with regard to the commitment to maintaining employment (Sixth Additional Provision of Royal Decree-Law 8/2020), the first instance judge insisted that the consequence of failure to comply is not the unfairness of the dismissal, but the repayment of the “pardoned” contributions.

In light of the foregoing, we see how, little by little, it is the labour courts which, in view of the particularities of each case, have again begun to answer the questions which have arisen following the approval of these regulations which, without a doubt, generated and continue to generate a sense of insecurity for the business owner. Consequently, it can be understood that dismissals carried out by companies due to ETOP reasons and the impact of the pandemic when, prior to the declaration of the state of alarm, such companies already had a negative financial situation and, furthermore, found themselves obliged to request an ERTE due to force majeure from COVID-19, should not necessarily be considered unfair.