The cost of unfair dismissal in Spain and its reconfiguration in the light of international law

Abstract

In Spanish Labour Law, unfair dismissal is one that is not based on the reasons that enable the employer to dismiss, either for disciplinary reasons, or because of the operation of the company. It is also the one carried out without respecting the established formal requirements. When the dismissal is declared unfair, the employer can choose between reinstating the worker or, more frequently, the payment of compensation capped at its maximum amounts according to a scale that has two automatic components: salary and seniority in the company. The Spanish labor law on dismissal, but also other European ones such as the French or the Italian are attracting a growing opposition due to their possible lack of fit with international standards, such as the European Social Charter or ILO Convention number 158, which require that compensation for dismissal be adequate, so it must compensate the worker for the damages caused and be dissuasive. The institution of the control of conventionality takes on special importance as a legal tool for the non-application of the internal norm in favor of the international one.