Employment regulation and eligible terminations: de facto collective dismissal, a happy concept in continuous expansion

On the occasion of the Supreme Court Ruling 933/2021, of 23 September

Abstract

The 2012-2014 labour reform aimed to provide companies with greater flexibility in the management of the causes of collective dismissals, including the end of administrative authorisation. However, it was no less clear that the consultation procedure was not available to the company, which circumvented it by fragmenting and diversifying redundancies and dismissals. The construction of the de facto collective dismissal was a jurisprudential creation so that materially collective dismissals, but formally individual or plural, were channelled through article 51 of the Workers’ Statute. This construction of living law has grown over time and today has great appeal. As the Spanish Supreme Court has just confirmed, even dismissals for failure to pass the probationary periods ex article 14 of the Workers’ Statute, even if the cause is not declared, can be considered as dismissals included in the computation of the threshold of article 51 of the Workers’ Statute. Once again, reality and good faith, with the prohibition of the antisocial exercise of the right of article 7 of the Civil Code, prevail over formalism and the freedom of business decisions, for the sake of public-economic labour order.