Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 158) sur le licenciement, 1982 - Espagne (Ratification: 1985)

The Committee notes the Government’s report for the period ending June 2011, in which emphasis is placed on the provisions respecting termination of the employment relationship adopted through Act No. 43/2006 of 29 December to improve growth and employment; Framework Act No. 3/2007 of 22 March on Effective Equality for Women and Men; and Act No. 35/2010 of 17 September adopting urgent labour market reform measures.

Reasons for dismissal. The Committee notes with interest that the provisions of the Framework Act on Effective Equality for Women and Men have reinforced the grounds that do not constitute justified reasons for the termination of the employment relationship (Article 5 of the Convention). Reasons included relate to the protection of workers during maternity leave, an absence related to pregnancy and adoption, and also in the case of workers who are victims of harassment in respect of the exercise of their work-related rights.

The Committee notes, in particular, that dismissal as a disciplinary measure is imposed for harassment against the employer or persons who work in the enterprise on grounds of racial or ethnic origin, religion or convictions, disability, age or sexual orientation, as well as sexual harassment or harassment on grounds of sex (section 54.2 of the new version of the Workers’ Charter).

The Committee invites the Government to indicate in its next report any decisions by courts of law giving effect to these changes introduced by the Framework Act of 2007 on Effective Equality for Women and Men.

Justification of dismissal. Reforms of termination benefits. The Government indicates in its report that Act No. 35 of 2010 adopting urgent labour market reform measures changed the wording of the reasons for dismissal on economic, technical or production-related grounds, as a result of certain shortcomings in the operation of the termination procedures set out in sections 51 and 52(c) of the Workers’ Charter. These shortcomings had given rise to a shift from the termination of indefinite contracts for economical or production-related reasons towards more cases of wrongful dismissal for disciplinary reasons. The Committee notes the detailed wording of the justified reasons required for dismissal on economic, technical, organizational or production-related grounds set out in section 54(1) of the Workers’ Charter. The Committee observes that this is intended to reinforce the giving of reasons for the termination of employment contracts. The Committee invites the Government to provide with its next report the main decisions by courts of law giving effect to the reasons justifying the termination of the employment relationship based on the operational requirements of the enterprise (Article 4). The Government adds that Act No. 35 of 2010 contains other amendments to the Workers’ Charter and the Labour Procedures Act specifically related to notice periods and the calculation of termination benefits. The Committee understands that the principal purpose of these measures is to maintain and create employment. The Committee invites the Government to include in its report an evaluation of the impact of the reduction in the level of termination benefits by the legislative reforms of 2010 and 2011 in terms of maintaining and creating employment. In this respect, the Committee invites the Government to include with its report updated information on the intervention of the labour authorities in cases of collective dismissal, the outcome of appeals against unjustified termination, the average time taken for an appeal to be decided and the role played by mediation and arbitration in resolving issues related to the Convention (Part V of the report form).

[The Government is asked to reply in detail to the present comments in 2013.]