2024-08-05 03:45:00
The decision of the European Committee of Social Rights (CEDS) questions the compensation, assessment and limitation, of the regulation in Spain regarding unfair dismissal due to a violation of Article 24 of the European Social Charter (ESC), which requires adequate compensation and/or appropriate compensation . repair. Despite the literal reference of this international standard to the national standard regarding the determination of compensation specifically, in the face of indiscriminate dismissal, CEDS teaching is contrary to assessment and capping systems, generalized in all member states of the Council of Europe, and advocates. for open judicial redress based on each worker’s personal circumstances. The compensation of 33 salary days per year worked with a maximum of 24 monthly payments for unfair dismissal in Spain is, therefore, called into question, as were the amounts regulated in Finland, Italy and France.
The impact of this CEDS decision will be relative, as these precedents show. International treaties bind States under the terms of the treaty itself and from the CSE, two premises can be deduced.
On a jurisdictional level, this decision is not binding jurisprudence, as this is how it is regulated in the CSE and national regulation is confirmed. The decision does not imply that judges are obliged to determine open compensation in all cases and will continue to apply the current Spanish regulations on unfair dismissal. The Supreme Court will determine the scope of this decision and whether or not it is contrary to the Law to recognize additional open compensation based on personal circumstances, as some rulings exceptionally admit, when assessing and limiting our system .
At the level of the law, it is not a permissible international imposition, because that is how it is regulated by the CSE, which literally considers these decisions as a basis for possible recommendations from the European Council. There is no international obligation for the State to comply, nor is there any system of tax sanctions within the Council of Europe due to non-compliance with these decisions, and their vital content is not imposed on State Governments.
Within these legal coordinates, it is now the duty of the Government to activate or not to activate a compensation amendment for unfair dismissal, in a strict political decision. The assessed and capped compensation benefits the worker, free from creating damages, the companies, with certainty, employment, with neutral contractual effects, and the judicial system, which would be overloaded in the face of open compensation, when the agreement between the company. often and diligently given this predictability. Accordingly, any reform of unfair dismissal should be moved within this paradigm which protects the general interest.
Jesus Lahera Forteza He is professor of Labor Law and Social Security at the Complutense University of Madrid.
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