Is it really forbidden to dismiss nowadays?

With the extension of the force majeure ERTE until 30 September, the so-called prohibition of dismissal was also maintained, but what are the consequences of this prohibition?

With the publication in the BOE of Royal Decree-Law 24/2020 on social measures to reactivate employment and protect self-employment and the competitiveness of the industrial sector, the new conditions for extending Temporary Layoffs (ERTE) until 30 September were specified. This gave a respite to all those companies that feared losing the protection of ERTEs at the end of June. However, along with the obligation to maintain employment, the so-called prohibition on dismissals was also extended until the same date (30/09/2020).

Objective dismissals for economic, technical, organisational, production and force majeure reasons related to the effects of COVID-19 will therefore not be justified until 30 September 2020.

The aforementioned provision has given rise to diverse literature among the specialised doctrine, with the majority claiming that this prohibition would lead to the unfairness of dismissals carried out contrary to the provision, although there is also a current that predicted the possible nullity of these dismissals. The first reaction of the courts in this regard has not been long in coming.

Social Court No. 3 of Sabadell recently handed down a ruling declaring the dismissal of a worker during the State of Alarm to be null and void. The worker whose contract was terminated on 27 March was linked to the company by a contract for a specific work or service. The judge argued the nullity of the dismissal basically on the basis of article 2 of Royal Decree 9/2020 approved by the Government to establish the state of alarm decreed by the coronavirus. This article establishes that the force majeure and the economic, technical, organisational and production causes that justify the suspension of contracts and reduction of working hours due to the coronavirus“cannot be understood as justifying the termination of the employment contract or dismissal“. Currently, the nullity of dismissal is established by art. 55. 5 of the Workers’ Statute, being those that are motivated by any of the causes of discrimination prohibited in the Constitution or in the law, or are produced in violation of the fundamental rights and public liberties of the worker. Specifically, the following cases are included as null and void dismissals:

• That of workers during periods of suspension of the employment contract due to birth, adoption, fostering for the purpose of adoption, fostering, risk during pregnancy or risk during breastfeeding,
• or due to illness caused by pregnancy, childbirth or breastfeeding, or that notified on a date such that the period of notice granted ends within these periods.
• Pregnant workers, from the date of the beginning of the pregnancy until the beginning of the maternity period;
• that of workers who have requested or are taking one of the leaves referred to in Articles 37.4, 5 and 6 (breastfeeding, reduction for legal guardianship, etc.), or who have requested or are taking leave for legal guardianship.
• That of female workers who are victims of gender violence for exercising their right to effective judicial protection or the rights recognised in this law to make their protection effective or their right to comprehensive social assistance effective, or that of female workers after having returned to work at the end of the periods of suspension of the contract due to birth, adoption, foster care or adoption, provided that no more than twelve months have passed since the date of the birth, adoption, foster care or adoption.

Evidently, there have been many more dismissals during the validity of the “prohibition” of dismissals, and the other rulings that have ruled on the unfairness of dismissals have not enjoyed as much publicity as the one discussed in this article, as it is the dissenting voice among the majority. However, we will have to monitor possible appeals and new rulings in view of the possibility that this trend could be confirmed by our High Courts.