Spain's Supreme Court rules on when to communicate a dismissal to workers' representatives

The Supreme Court in Spain has determined that the communication to workers' legal representatives of an objective dismissal can be made after the notification to the employee

The Supreme Court, in its ruling issued on 5 July 2023, addressed the question of the appropriate time to inform the workers' legal representatives when a dismissal is made on economic, productivity, organisational or technical grounds.

Specifically, it discussed whether notification must precede or be simultaneous with the notification of the dismissed employee, or whether, instead, it can be carried out afterwards, given the lack of any indication in the Workers' Statute in this regard.

Fair dismissal?

The case involved a company that notified the dismissal of an employee due to organisational reasons. However, the communication to the workers' representatives took place four days after the notification to the employee herself. The employee claimed that the dismissal was unfair, arguing that the company did not comply with the proper time limit for notifying the workers' legal representatives of her dismissal.

After a long judicial process, the High Court of Justice of the Valencian Community, in its judgment of 19 October 2021, declared the dismissal to be lawful. This decision is based on the interpretation that the notification made to the workers' legal representatives four days after the date of the termination notice to the employee complied with the formal requirements of article 53.1 of the Workers' Statute.

The Supreme Court's interpretation

The Supreme Court upheld the decision of the High Court of Justice of the Valencian Community and bases its judgment on the following legal arguments:

• Error in the wording of Article 53.1.c) of the Workers' Statute. The provision in question requires a copy to be given to the workers' legal representatives of the notice given to the employee. The High Court clarified in the judgment that the copy to be provided to the representatives is not the notice itself, but the notice of dismissal detailing the reasons for the decision to terminate the employment.
• The communication to the representatives cannot be prior to the delivery of the communication to the dismissed employee. The Supreme Court established that the will of the law is that the letter of dismissal given to the employee should also be given to the legal representatives. Therefore, it is obvious that the communication to the workers' legal representatives can be made after the actual act of dismissal, as long as it is made within a "reasonable" period of time that does not frustrate the purposes of the legal requirement.

The Supreme Court concluded that in this specific case, the communication was made four days after the dismissal, and determined that this delay in the communication in no way prejudices or affects or conditions either the rights of information and consultation of the legal representatives of the workers, or those of the dismissed employee herself, thus confirming the validity of the dismissal.

Osborne Clarke comment

Given the undefined nature of the term "reasonable period of time" used by the High Court, it is suggested to notify the representatives immediately after the communication of the dismissal to the employee.