Protection against arbitrary dismissal: the criterion of the European Committee of Social Rights and the response of the Supreme Court

Abstract

This paper analyses protection against dismissal without fair cause, particularly following its reduction in cost under the 2012 labour reform, on the premise that Labour Law must guarantee the safeguarding of workers against the loss of their means of subsistence. It questions whether the fixed and capped compensation provided for unfair dismissal effectively fulfils an adequate compensatory and deterrent function or whether, on the contrary, it proves insufficient to fully redress the harm caused. The regulation of arbitrary dismissal has undergone intense legislative, doctrinal and jurisprudential development. Following Spain’s ratification of the Revised European Social Charter, the European Committee of Social Rights has considered that our legal system infringes Article 24 by failing to allow full reparation and by not sufficiently protecting workers against unjustified dismissals. This interpretation contrasts with the case law of the Supreme Court, which denies direct effect to such decisions and upholds the validity of the current compensation model. The aim is to provide a comprehensive view of the effectiveness and scope of the rules on protection against unjustified dismissal.