The position of a workers’ legal representative is a legally protected situation and, for such purpose, Article 68 of the Spanish Labour Relations Act (ET) acknowledges that a series of guarantees are granted to the members of the Works Council and Union Delegates. Therefore, if the dismissal of a workers’ representative is ruled unfair through judicial channels, it would imply such person, instead of the employer, is the one who is entitled to choose between being reinstated in the company, with payment of his/her salary during the proceedings, or receiving severance pay.

This guarantee means that, before dismissing a member of the workers’ legal representatives, companies must conduct an in-depth assessment of whether or not it would be in their interest to dismiss a worker who, in the case of being ruled unfair, could decide to remain in the company, with the unpleasant situation this would imply for both parties. However, what would happen if, at the time a worker is dismissed, both such worker and the company are unaware that he/she had acquired the position of a workers’ legal representative? Would the guarantees granted to such position be applicable? Or, due to being unaware of such situation, the effects thereof would not yet be applicable?

In order to reply to these questions, this month we deal with a judgement ruled by the Labour Chamber of the Supreme Court number 229/2022 of 15 March 2022, which analyses, perhaps a rather unusual case but, precisely for this reason, quite curious.

What happened in this specific case?

In 2016, a worker that would later become the plaintiff in legal proceedings stood for election to the Works Council, being the first substitute for the only candidature that had been proposed.

Two years after holding the elections, one of the members of the Works Council resigned from office without notifying such resignation to the company, which was absolutely unaware of such resignation, and it dismissed the worker who would later become the plaintiff in the legal proceedings and who, two days earlier, had become a member of the Works Council to replace the resigning worker when her colleague resigned as a workers’ legal representative.

Of course, the worker filed a claim against the dismissal by the company and the Labour Court ruled it was unfair and ordered the defendant company to reinstate the worker or provide her with the relevant severance pay within a term of five days, such option being at the discretion of the worker due to her position as a workers’ legal representative, a position which was unexpected and unknown both by such worker and the company on the date the dismissal took place.

The High Court of Justice did not reach the same conclusion, but the Supreme Court unified doctrine.

The High Court of Catalonia took a different position to the one of the lower court, concluding that when there is a situation of substitution, revocation, resignation or termination of office by a member of the Works Council, such fact must be notified to the public office reporting to the labour authorities and to the employer and it must also be posted on the company’s notice board. Therefore, after realising that, in this case, such formality had not taken place and the company was unaware of the worker’s new situation, it could not be ruled that, at the time of the dismissal, the plaintiff held the position of a workers’ legal representative nor that she held the right to exercise the guarantees granted to such office.

However, the Supreme Court overturned the judgement of the High Court of Catalonia and ruled in favour of the plaintiff, stating that, since her dismissal was ruled unfair, the worker was entitled to choose either severance pay or reinstatement.

The Chamber pointed out that Article 67.4 of the Spanish Labour Relations Act is clear when it states that, if there is a vacancy on the company committees, it shall be automatically filled by the next worker on the list and that a correct interpretation of such provision must be understood as follows:

1. Acquiring the position of workers’ legal representative is immediate, automatic and takes place at the time the former member of the committee resigned.
2. It is not necessary to report or notify that a worker has acquired the position of a workers’ legal representative.
3. Acquiring the position of workers’ legal representative is not subject to the company being informed of such fact because it takes place automatically and is valid for everyone regardless of whether or not it is known by third parties.
4. Lastly, when the position of workers’ legal representative is acquired, the guarantees granted to such position are directly applicable, among which the right to option can be highlighted, inter alia.

Must we study the individual situation of all the workers before adopting a business decision to avoid any unexpected risks?

The following question arises from reading this judgement: Must companies investigate all the individual situations of the workers to exclude any possible situation for which protection is required? 

In spite of how strange the case may seem, a priori, this judgement is highly relevant because it is based on the company not knowing about the substitution of the workers’ representative taking place.

However, it was acknowledged that, at the time the dismissal took place, she had already acquired her new position as a workers’ legal representative because the substitution takes place automatically and therefore the plaintiff already benefited from all the protection granted by the regulations to such position as a representative.

This draws our attention to the importance of conducting an analysis of the circumstances arising in each specific case before adopting any business decision to thus avoid any possible unexpected risks.

Once again, it is obvious that suitable preventive advice can avoid a great deal of surprises that could lead to companies needing to keep employees on their staff who otherwise would have been dismissed.