Step prior to a claim through the labour courts

There are labour claims that, when there has been no understanding with the employer, must be pursued through the courts. Undoubtedly, it is always better to reach an agreement, but sometimes there is no other option. Our purpose with this article is to explain in detail what are the previous steps you must take to undertake them.

Preliminary labour claims and their processing

In order to file a labour claim against the State, public law entities with dependent, related or independent legal personality or local entities and the management bodies of the autonomous communities, it is essential that the interested party has fully exhausted administrative channels. This must also be done in accordance with the provisions of the Law on Common Administrative Procedure.

In this sense, the Public Administration is obliged to send a notification to the interested parties containing the administrative acts and resolutions that have an impact on their interests and rights. In fact, it must contain the full text of the resolution and a specific indication as to whether or not it puts an end to the administrative process. It must also state which appeals can be lodged and with which body, as well as the time limit for lodging them. It may never prejudice any other procedure that the subject is entitled to initiate. 

To whom is the preliminary labour complaint addressed?

The complaint must be addressed to the director of the establishment or body in which the employee works. Likewise, it must be filed with the same body that was responsible for issuing the decision. The deadline for doing so is 30 calendar days from the moment in which the interested party received the notification or, failing that, from the moment from which it can be understood that the formula of administrative silence has been chosen.

In the event that the decision, regardless of whether it is presumed or express, has been issued by a collaborating entity and not by the body responsible, the complaint against it must be lodged, always taking into account the aforementioned deadlines, with the corresponding body of the managing body or service body.

What happens with prior employment claims regarding the denial of the worker's permanent incapacity?

The application for permanent incapacity or, failing that, the review of the degree of incapacity granted in the past is also the subject of a prior claim. Specifically, before the decision issued by the National Institute of Social Security in this regard, it is possible to lodge such a claim within 30 working days of receipt of the notification.

The Disability Assessment Team will be the body that will carry out the review of the worker and which will determine, or not, the situation of absolute, total or partial permanent disability or that of major disability requested by the claimant. It is also in charge of carrying out the reviews related to the degree of permanent incapacity previously granted to the interested party. The applicant also has 30 days to file a preliminary claim with this body. If the claim is denied, he/she will have to file a lawsuit before the corresponding Social Court.

What are the deadlines for administrations to resolve prior claims?

From the precise moment that administrative channels are considered to be exhausted, the administrative body has two calendar months to formalise and file a claim before the Social Court or before the chamber with jurisdiction in the matter.

This application must be accompanied, in all cases, by a copy of the decision rejecting your claim or, failing that, a document certifying that the administrative appeal you have lodged has been lodged and resolved. A copy of everything must be made and sent to the defendant.

In the event that the lawsuit is filed as a consequence of a dismissal, the deadline stipulated by law for filing such a lawsuit is 20 working days. However, there are exceptions that may apply in specific cases. In any case, this time limit starts to run from the day following the day on which the decision to challenge the dismissal is received by official notification. 

Can the limitation period be interrupted?

The answer is yes. In fact, it occurs when the notifications sent, even if they contain the full text of the decision, omit any of the requirements mentioned above. The same applies to time limits. In this type of situation, they will only be resumed when the interested party initiates actions against them that imply that he/she is aware of the scope and content of the decision. For example, an appeal should fall within this scope.

Are there any exceptions to the exhaustion of administrative remedies?

Exhaustion of administrative remedies is not indispensable in all cases in order to bring a legal action. Specifically, these exceptions refer to cases in which the decisions infringe the public liberties and fundamental rights of the affected party.

In this type of case, the subject has the right to bring an action for protection in the exercise of his or her trade union and labour powers against certain acts of the public administration.

However, in this situation, the deadline for filing this action is 20 calendar days from the day after the notification of the act is received or, failing that, from the end of the period set for the issuance of the resolution, it being understood that there has been administrative silence.

In the event that the fundamental right is infringed as a result of the inactivity of the Public Administration, the period of 20 calendar days for the filing of the claim will begin 20 days after the claim against said inactivity.

We are well aware that the issue of prior labour claims is quite complex. Therefore, we have tried to explain it as simply as possible. In any case, if you have any questions, just write to us and we will answer them. We hope we have been helpful.

Remember that our Law Firm in Madrid is specialised in this and many other matters in which we can help you.