Dismissal. Compensation in addition to the legal compensation in excess of that established in the Workers' Statute.

Compensation for current dismissal

The compensation for unfair dismissal, as our labour lawyers inform us, is currently regulated in article 56 of the Workers' Statute and is 33 days per year of service with a limit of 24 monthly payments.

Severance pay in addition to dismissal

For some time now, some courts have been pronouncing in favour of the establishment of an indemnity higher than the 33 days established in the Workers' Statute.

The reason for additional compensation

The essence of these pronouncements is based on the fact that it is considered that in certain cases the legal compensation may not be sufficient if it is proven to have caused damages to the worker. For this reason and application of Convention 158 of the International Labour Organisation (ILO) and Article 24 of the European Social Charter are pronouncing in favour of including additional compensation to dissuade the company from dismissal, and the amount of the additional compensation must be proportional to the damage caused to the worker.

Rulings in favour of compensation

In this regard, the High Court of Justice of Catalonia has issued different rulings in this regard. In any case, the Catalan court ruled in favour of additional compensation in the case of a worker in the health administration of Catalonia who requested a leave of absence for one year, from 6 May 2022, in order to be able to work for the company Comsa Service. On 3 April 2023, the worker requested an extension of the leave of absence for a further year, which was granted on 17 April by the regional administration.

However, three days earlier, on 14 April 2023, the company had given the employee a letter informing him of his dismissal for disciplinary reasons, effective from the same day. The company offered the employee a severance payment of 3,555.41 euros, when he was asking for one year's salary, equivalent to 46,728.24 euros, and to compensate him for the "damages" caused by the company's decision. In fact, this is the amount that, in the end, was approved by the High Court of Justice after overruling the judgement of the Social Court, which found in favour of the company. And it did so by applying the criteria of European labour law.

At present, the amount of compensation for unfair dismissal is 33 days' pay per year of work, up to a maximum amount equivalent to two years' pay. But the ruling goes further, because it appreciates two facts that European legislation contemplates in these cases so that the ruling can be a lesson for the employer and, secondly, repair the damage caused to the worker. The court's ruling states that "it must be sufficient compensation, both to dissuade the employer [that he cannot dismiss as easily as he intends] and that it must be proportionate to the damage suffered by the victim". "In such a way," says the Catalan court, echoing another judgment of the High Court of Justice of the Basque Country, "any cap on compensation that may prevent it from being proportional to the loss suffered [by the worker] and sufficiently dissuasive for the employer is, in principle, contrary to the revised Social Charter...".

In other words, the aforementioned fixed amount of unfair dismissal and the employer's conduct in such circumstances are contrary to European law. In the case in question, the worker "was deprived of his job, with no possibility of returning to his former job until one year after his dismissal, as his voluntary leave of absence had been extended, which caused him obvious harm...". And, secondly, the judgment states that the additional compensation is justified "in essence by the meagre compensation for the worker - 3,555.41 euros - which does not sufficiently compensate the worker for the loss of employment". Especially when he asked for a year's leave of absence from the health administration; without work and on leave he would no longer have a regular income.

Final situation

In this context, it should be borne in mind that this type of judgement, with compensation higher than what the Workers' Statute says, increasingly occurs with people who, after a short time in the new company, are dismissed. For example, because the company changes its mind due to various circumstances. But, on some occasions, the dismissed have taken a leave of absence from the Administration, as is the case, or have had to move to another city and change the children's school. Or the spouse decides not to work in order to accompany their partner in what seems like a good job. These are some of the personal circumstances that the courts are beginning to take into account in order to penalise companies with higher compensation than what the labour law says. It is also true that the ruling says that, in order to be able to claim in these cases, the dismissed worker must prove the damages suffered and quantify their reparation.

The Court holds that "the small amount" of the ordinary compensation justifies the additional compensation.

Our law firm specialises in employment law, consult any of our employment lawyers who will be able to advise you on issues of additional compensation to the legal compensation.