Dismissal with unreal cause: predictable changes with the ratification of the revised European Social Charter?

Commentary on the judgment of the Tribunal Superior de Justicia de Andalucía/Sevilla 3571/2020, of 19 November

Abstract

Spain is going to ratify the revised European Social Charter. The consequence must be a reinforcement of the protection against arbitrary dismissal or without real cause by virtue of its article 24. This added protection must be produced for dismissals linked to the COVID-19 and dismissals without real cause, for ordinary or normal times. Before this legal change, a part of the judicial doctrine, with the argument of carrying out a judgment of conformity (conventionality) of Spanish laws to international standards, to article 24 of the revised European Social Charter and ILO Convention 158, has rebelled against the previous jurisprudence, the Supreme Court and the Constitutional Court. The Spanish High Courts have been assessing that Spanish law on dismissal without real cause or with fraudulent cause is in accordance with international law. The result is an extreme disparity of interpretive criteria. This strong contrast of criteria causes extreme –sometimes unnecessary– legal uncertainty. The author criticizes this chaotic judicial situation and proposes alternatives that, in his opinion, are more legally rational and more socio-economically equanimous.