The guarantee of indemnity, as an aspect of the fundamental right to effective judicial protection, is not something new but has been introduced by the jurisprudence of our Constitutional Court (among others, STC 140/1999) and by the Social Division of the Supreme Court over the last few years, and reiterated in its latest Plenary Judgment of 15 November 2022.
Basically, in the labour sphere, this guarantee entails the declaration of nullity of the employer's decisions adopted in retaliation for the exercise by the worker of his/her labour rights, including the classification of the dismissal as null and void when it is accredited that the dismissal was a consequence of a previous claim by the worker.
In the latest Supreme Court ruling, the legal norms that protect this guarantee are expressed in detail, basically and as indicated in the fundamental right to effective judicial protection provided for in article 24 of the Spanish Constitution, as well as Convention 158 of the International Labour Organisation (ILO), which in its article 5.c) on the termination of the employment relationship provides:
“The grounds which shall not constitute just cause for termination of employment include: (c) filing a complaint or participating in proceedings against an employer for alleged violations of laws or regulations, or appealing to the competent administrative authorities".
But this guarantee of indemnity is not only protected by the Constitution and the International Convention, but is also regulated in various ordinary laws. Thus, for example, the decisions of the employer that involve unfavourable treatment of workers as a reaction to a complaint made in the company or to an administrative or judicial action aimed at demanding compliance with the principle of equal treatment and non-discrimination are null and void and discriminatory (Art.17.2, second paragraph of the Workers' Statute).
Also by way of example, there are similar provisions in the recent Law 15/2022, integral for equal treatment and non-discrimination, which defines "retaliation" in Article 6.6;
"For the purposes of this law, reprisal means any adverse treatment or negative consequence that a person or group of which he or she is a member may suffer for intervening, participating or collaborating in an administrative procedure or judicial process aimed at preventing or putting an end to a discriminatory situation, or for having filed a complaint, claim, denunciation, lawsuit or appeal of any kind with the same purpose".
In its Judgment, the Supreme Court accepts the reiterated constitutional doctrine on the guarantee of indemnity which holds that "the infringement of the right to effective judicial protection is not only caused by irregularities occurring within the judicial process which result in the deprivation of procedural guarantees, but also that this right may also be infringed when its exercise, or the carrying out by the worker of preparatory or prior acts necessary for a legal action, results in retaliation by the employer".
In other words, this guarantee of indemnity applies not only when a legal action has been brought, but also when preparatory acts have been carried out by the worker prior to the bringing of the legal action. The Supreme Court clarifies that it is not necessary that a judicial action must necessarily be brought after the prior claim in order to protect the guarantee of indemnity.
The High Court also clarifies that not all prior internal complaints within the company activate the guarantee of indemnity, but clarifies that if a worker makes an internal complaint and immediately afterwards is dismissed, without the company proving the existence of breaches that justify the termination of the contract, there is a clear indication of a violation of the fundamental right, which can only be undermined if the employer proves that the reason for the dismissal was unrelated to the violation of the fundamental right.
In short, the guarantee of indemnity protects workers from being retaliated by the employer against claims, legal actions or preparatory acts of claiming labour rights, although as the Supreme Court itself clarifies not all claims within the company obtain such protection and for its part the employer can prove that the dismissal or the decision taken is based on completely different facts and disconnected with that claim, so that from the Labour Department of BELZUZ ABOGADOS, S.L.P. always recommends, from the perspective of the employer and the employees, to obtain appropriate legal advice beforehand.
Director del Departamento de Derecho laboral | Madrid (España)
Belzuz Abogados SLP
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