On compensation (neither adequate, nor restorative, nor dissuasive) for unfair dismissal

Commentary on the Ruling of the High Court of Justice of the Basque Country of 23 April 2024 (rec. 502/2024)

Abstract

Spain is in breach of the European Social Charter (both original and revised) in many respects and has shown itself to be reluctant to comply with it, despite having ratified it and incorporated it into our domestic legislation with its publication in the BOE and, consequently, all the powers (legislative, executive and judicial) of the State and logically the rest of the public authorities (state, autonomous, provincial and local) are subject to it. According to the European Committee of Social Rights, one of these aspects relates to the right to adequate compensation (article 24 of this Charter) in the case of our unfair dismissal, on which there is already contradictory case law from the High Courts of Justice which —apart from any regulatory changes that may be made in this respect— will eventually lead to the intervention of the Supreme Court. The judgement analysed here, aware of this case law, recognises the payment of additional compensation because the legally established compensation for unfair dismissal is neither adequate, nor reparatory, nor dissuasive, after analysing the impact on our domestic law of both the European Social Charter and the European Committee of Social Rights.