Can a layoff for COVID be considered appropriate?

Barcelona’s No.1 Social Court issued a pioneering judgment because it is the first judgment which, since the start of the Covid-19 pandemic, has decided not to apply the ban on dismissal established by the government to the ‘Article 2 of Royal Decree-Law 9/2020, of March 27 (hereinafter, “Law-RD 9/2020”), it being understood that said precept violates the right to freedom of enterprise and to the development of commercial activity, recognized both in the internal constitutional order as in the various treaties of the European Union.

It should be recalled that article 2 of law RD 9/2020 establishes that: “force majeure and the economic, technical, organizational and production causes in which the measures for suspending contracts and reducing working time provided for in Articles 22 and 23 of Royal Decree-Law 8/2020, cannot be understood as a justification for the termination of the employment contract or dismissal ”.

According to the judgment analyzed, the defendant company proceeded with the objective dismissal of the plaintiff employee on the basis of two objective causes, one of an economic nature – consisting of the continuous decline in sales – and the other of a productive nature – for reduction of demand and loss of customers due to Covid-19.

In this sense, according to Teresa Ezquerra, lawyer for Abencys, “what is relevant in the judgment is not the original declaration of the dismissal itself, and that it could have been confirmed by the simple assistance of the economic cause – foreign and prior to the pandemic by Covid-19-, but the interest lies in the confirmation and application by the adjudicating body of a productive cause which, according to the company itself in the letter of dismissal, finds its origin in Covid-19, and to which therefore, the prohibition of article 2 DR-Law 9/2020 is applicable ”. And he adds that “in short, what is interesting in this resolution is the non-application by the judge of a legal provision in force”.

There is no simple legal debate when there is a conflict between two protected legal rights, such as the right to free enterprise and the right to work in this case. According to Ezquerra, “the judgment analyzed does not at any time stem from the simplicity or error of choosing which of these two rights should prevail over the other. On the contrary, the judgment recognizes the two rights in the same way when it states that “a competitive market economy also requires the protection of both the right to provide work and the right to freedom of enterprise”.

In this case, the magistrate understands that “the development of the economic activity of individuals is not entirely free, but is regulated by the public authorities and, therefore, subject to various procedures, requirements, rules and / or prohibitions, of limited form “

“Now the judge considers that article 2 of law RD 9/2020 violates the right to freedom of enterprise enshrined in article 38 of the Spanish Constitution and article 16 of the European Charter of Rights fundamental, as the established limitation (prohibition of dismissal) is of such a nature as to empty said right of content, ”explains the lawyer.

Despite the reasonableness and consistency of the arguments put forward in the judgment, the judge chose not to raise a preliminary ruling before the Court of Justice of the European Union (CJEU), insofar as “this resolution is likely to appeal (…) and that in any event, the judge would not be confronted with interpretative doubts, but rather fully convinced (given the current well-known circumstances) that the internal regulations do not respect said precept of the TEU ”.

Regarding the question of unconstitutionality before the Constitutional Court contained in article 5.2 of the organic law of the judicial power, the judge does not even refer to the possibility of having raised it, although he is act from the right to freedom of business a right recognized in our Constitution.

Assuming that the dismissed employee appeals the judgment in deputy before the Superior Court of Justice of Catalonia (TSJC), and if the case will come, in cassation before the Supreme Court (TS), it will be necessary to wait to know if the criterion of Instance judge is shared and confirmed by the higher bodies.

However, other resolutions to the contrary are already known to other district courts, and even higher courts of justice, which have preached inadmissibility (ST TSJ Andalucía of 19 November 2020) or nullity (ST Court of Social N ° 3 of Sabadell of July 6, 2020) of layoffs made by the employer involving situations derived from or caused by Covid-19.

“Consequently, and not having previously raised consultation with the European Court of Justice to obtain its approval, it is quite difficult or unlikely that the judgment will be upheld in higher courts, without prejudice to the fact that the TSJ or the Supreme Court could, if they had doubts about Concerning the interpretation or the validity of the precept, raise the question before the CJEU so that it is this Court which determines the applicability, or not, of Article 2 RD- Law 9/2020 ”, explains Teresa.

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