Article 53.1 of the Spanish Labour Relations Act, (hereinafter referred to by its initials in Spanish “ET”), stipulates the formal requirements that must be met for objective dismissal, i.e. when the termination decision is based on economic, technical, organisational and production reasons, (ETOP reasons).

 

The following is a brief summary of these requirements:

  1. Written notice must be sent to the worker specifying the reason for his/her termination;
  2. At the same time that the written notice is delivered, the worker must be provided with severance pay of twenty (20) days per year worked, proportional by months for the periods of time shorter than one year, up to a maximum of twelve (12) monthly payments;
  3. A prior notice period of fifteen (15) days is granted, counted from delivery of the personal notification to the worker before termination of his/her employment contract. In the case referred to in Article 52.c), a copy of the prior written notice must be provided to the workers’ legal representatives for their information.

 

However, regarding this last aspect, regulated in point c) of Article 53.1, this appeal (cassation) for unification of doctrine was lodged as explained below that in summary is as follows: In dismissals for objective reasons, when must the copy of the dismissal letter be provided to the workers’ legal representatives?

 

What happen in this specific case?

The case in question here dealt with the possible consideration of a “formal defect” due to not having delivered a copy of the dismissal letter to the workers’ legal representatives before or at the same time as the valid date of dismissal and that such omission implied a ruling of unfair dismissal according to Article 122.3 of the Spanish Act regulating the Labour Jurisdiction.

It should be specified that the legislator has not expressly stipulated the exact time this notice must be delivered to the workers’ legal representatives because it only states the following: “In the case referred to in Article 52.c), a copy of the prior written notice must be provided to the workers’ legal representatives for their information”.

Specifically, in the case of this judgement, by means of a document dated 01.09.2021, the defendant company providing the plaintiff worker with an objective dismissal letter valid as of the same date. After this, on 08.09.2021, the defendant company notified the Works Committee of the dismissal that took place on 01.09.2021 by sending a copy of the dismissal letter to the plaintiff in this case.

 

Judgements ruled in the proceedings:

  1. In the opinion of the Labour Court number 9 of Valencia, the dismissal was ruled unfair due to considering there was a formal defect by not having provided a copy of the dismissal letter to the workers’ legal representatives on the date the dismissal was valid.
  2. In the opinion of the High Court of Justice of the Community of Valencia, in the same way as the lower court, the dismissal was ruled unfair by sustaining that only if the notification of the dismissal letter to the workers’ legal representatives was before or at the same time as the termination of the worker’s employment contract, could the control be ensured about the correct use of the objective dismissal channel and the requirement stipulated for individual objective dismissals must be strictly interpreted, rejecting that notification can be provided after this time.

This means it was considered a formal defect due to having notified the objective dismissal at a later date and not before or at the same time thereof, this resulting in the decision for the termination being ruled unfair.
 

So… what was the ruling of the Supreme Court?

The appeal to the Supreme Court (Cassation) to unify doctrine analysed the time when the objective dismissal letter must be provided to the workers’ legal representatives; whether this must take place before or at the same time as the notice is sent to the worker in question or if the notice can be provided at a later time.

Having lodged the appeal, two contrasting judgements were analysed in which (i) in one of them the termination decision was notified to the Works Committee five (5) business days after the dismissal letter was sent to the worker and the requirement for form was not met hence the dismissal was ruled unfair; and (ii) another one in which the Works Committee was notified ten (10) business days after the dismissal letter was sent to the worker and the requirement for form was considered to have been met hence the dismissal was ruled fair.

The Supreme Court judgement of 3 April 2024 ruled on this question and interpreted the provisions in point c) of Article 53.1 of the Spanish Labour Relations Act, explaining that, as stated in the aforementioned provisions, a copy of the dismissal letter the worker had received must be provided to the workers’ legal representatives, the information given through this channel to such representatives being an “essential part of the legal system to control the institutional difference between collective and objective dismissal”.

However, the fact the company must provide the workers’ legal representatives with a reproduction or copy of the dismissal letter precisely shows that the notification to the representatives cannot take place before it has been sent to the dismissed worker.

In addition, it recalled the grounds in previous rulings and determined that such notification to the workers’ legal representatives can hence be sent after such dismissal letter has been sent, providing it is delivered within a reasonable term that does not infringe the purposes of the legal requirements or prevent the recipients, i.e. the representatives, from exercising their rights they could hold related to the information provided. Furthermore, in the case under analysis, it was obvious that such notification was sent within a reasonable term and did not affect or change the rights of the representatives or the worker.
 

Autor: Paula Navarro, abogada de Derecho Laboral de RSM