The European Committee of Social Rights (ECSR) of the Council of Europe, in a decision on the merits of a collective complaint filed by Confederación Sindical de Comisiones Obreras (CCOO) v. Spain (Complaint No. 218/2022) finds that the Spanish legislation on compensation for unfair dismissal, job reinstatement in cases of unfair dismissal and compensation for unfair dismissal of temporary workers hired in fraud of law breaches the revised European Social Charter ("the Charter").
In its complaint, the CCOO trade union confederation alleged that the situation in Spain constitutes a violation of Article 24 of the Charter in terms of the inadequate compensation in cases of unfair dismissal and of the right to job reinstatement in the absence of compensation for the damage effectively sustained. It also alleged that the compensation is insufficient for the damage suffered as a result of successive temporary contracts concluded in fraud of law, especially in respect of workers under temporary contracts in public administrations.
Regarding compensation for unfair dismissal, the ECSR confirms the conclusions of its decision on the merits of the collective complaint Unión General de Trabajadores (UGT) v. Spain (No. 207/2022), published on 29 July 2024.
Concerning the right to job reinstatement in cases of unfair dismissal, the ECSR considers that while Article 24.b of the Charter does not explicitly refer to reinstatement, it does refer to compensation or other appropriate relief. It finds that other appropriate relief should include reinstatement as one of the remedies available to national courts or tribunals in cases of termination of employment without a valid reason.
Although reinstatement is possible under Spanish law in limited cases, the domestic courts cannot assess whether it is the most appropriate option in a given case. The ECSR considers that the domestic courts should be able to assess the appropriateness of reinstatement in consultation with the parties to the proceedings.
The ECSR considers that in case of unfair dismissal or dismissal of a temporary worker that is null and void, the applicable provisions are identical to those for permanent workers. In these circumstances, the ECSR underscores that the same considerations apply and that the ceilings set by the legislation are not sufficiently high to make good the damage suffered by the victim in all cases and to be dissuasive for the employer. As a result, the real damage suffered by the worker concerned linked to the specific characteristics of the case may not be appropriately taken into account, not least because the possibility of additional compensation is very limited.
