Article 14 of the Spanish Constitution guarantees the fundamental right to non-discrimination for any reason and Article 17.1 of the Workers' Statute develops the fundamental right and principle of non-discrimination in labour relations.
In particular, the Statute establishes that regulatory precepts, clauses in collective agreements, individual agreements and unilateral decisions of the employer that give rise to situations of direct or indirect discrimination in employment, as well as in matters of remuneration, working hours and other working conditions, shall be considered null and void and without effect, to situations of direct or indirect unfavourable discrimination on the grounds of age or disability or to situations of direct or indirect discrimination on the grounds of sex, origin, including racial or ethnic origin, marital status, social status, religion or beliefs, political ideas, sexual orientation or status, membership or not of trade unions and their agreements, family ties with persons belonging to or related to the company and language within the Spanish State.
Orders to discriminate and decisions by the employer that involve unfavorable 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 will also be null and void.
In addition to this basic regulation, the recent Law 15/2022, of 12 July, on equal treatment and non-discrimination, after including age discrimination in the list of causes of discrimination, expressly establishes that limitations, segregation or exclusions due to discrimination may not be established in access to employment as an employee, including selection criteria, training for employment, professional promotion, remuneration, working hours and other working conditions, as well as in the suspension, dismissal or other causes of termination of the employment contract.
Against this legal backdrop of protection, dismissal is considered null and void when the employer's decision to terminate the contract is based on any of the grounds for discrimination prohibited by the Constitution or the law or when it has been made in violation of the fundamental rights and public freedoms of the worker (Articles 55 and 53 of the Workers' Statute).
With regard to judicial pronouncements relating to discrimination on grounds of age, the case law of our Constitutional Court is extensive (for example, STC 66/2015, of 13 April) which expressly accepts the reference of the Court of Justice of the European Union to the avoidance of such discrimination as a "general principle of Union law" (Judgment of the Grand Chamber of 19 January 2010, Case C-555/07 , Kücükdeveci v. Swedex GmbH, FJ 21).
The conclusion of our Constitutional Court, and accepted by our Supreme Court (e.g. STS of 20 December 2022) is that once it has been established that the age factor can be a cause of discrimination, differentiated treatment in dismissal can only be justified when strict requirements of justification and proportionality are met.
In this sense, and in accordance with the analysis of case law, there are numerous judgments in the labor courts that have favorably accepted age-based and non-discriminatory selection criteria in cases of collective dismissal, where in general there is a prior agreement between the company and workers' representatives, although when we are not dealing with collective but individual dismissals (normally objective dismissals) the selection of workers may be the object of discrimination by the company and lead to the nullity of the dismissal.
For example, this has occurred in the novel and well-known Judgment of the High Court of Justice of Madrid of 20 October 2022, in which an objective dismissal of a 57 year old worker with excellent results who was subject to objective dismissal was judged, and where the Court, given the evidence of discrimination provided by the worker, condemned a famous mobile phone company to the nullity of the dismissal for age discrimination as well as the imposition of compensation for violation of fundamental rights.
As lawyers specialising in labour procedural law, we believe it is very important to point out that for this type of dismissal proceedings in which the nullity of the dismissal is alleged due to age discrimination, once the worker provides evidence that there has been a violation of the fundamental right, the burden of proof is reversed and it is up to the defendant company to provide an objective and reasonable justification, sufficiently proven, for the dismissal carried out and its proportionality (Art. 181 of the Law Regulating the Social Jurisdiction-LRJS).
In short, as lawyers specialising in labour law, we understand that although these declarations of nullity of dismissal on grounds of age discrimination are not very common in social jurisprudence, companies should take into account this legal risk of age discrimination when considering their internal restructuring and consequent objective dismissals, so from the Labour Department of BELZUZ ABOGADOS, S.L.P. we always recommend from the perspective of business and workers to obtain appropriate legal advice.
Director del Departamento de Derecho laboral | Madrid (España)
Belzuz Abogados SLP
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