Employment and pensions

Spain's Supreme Court rules on workers' legal representative status in disciplinary dismissal

Published on 30th Jun 2023

The chamber concluded that there has been no infringement of freedom of association

The Supreme Court has declared that the exercise of the status of legal representative of the employees is extinguished during the period that elapses from the dismissal until the judicial sentence of the disciplinary dismissal agreed by the company is handed down.

The specific case

The judgment of 25 April 2023 refers to a case in which several employees of a company, affiliated to the trade union Comisiones Obreras and members of the Works Committee, including a union delegate, were dismissed for disciplinary reasons. Faced with this situation, the employees' representatives filed a legal action for "null and void" or subsidiarily unfair dismissal.

During the ongoing legal proceedings, the employees' representatives requested access to the workplace in order to attend works council meetings. However, the company refused access. In response to this refusal, the employees lodged a formal complaint with the Labour Inspectorate in order to safeguard their trade union rights.

Legal argumentation

The present case focuses on whether there has been a violation of freedom of association, as recognised in article 28.1 of the Spanish Constitution, and whether there has been a violation of article 67.3 of the Workers' Statute. The latter article provides that the mandate of the representatives can only be revoked by a decision of the  employees who elected them, and not by a unilateral decision of the employer. The possible contravention of Convention 135 of the International Labour Organization, which provides that employees' representatives in the company must have effective protection against any act that may be prejudicial to them, including dismissal, is also discussed.

Specifically, it analyses the alleged improper conduct of the company in denying access to its premises to the members of the works committee who have been dismissed, despite the fact that the decisions that have not yet become final.

The High Court states that there is no rule extending the guarantee of the exercise of representative functions during the pre-appeal procedure. Therefore, the employment relationship is extinguished with the dismissal due to its constitutive effects, without prejudice to the fact that, subsequently, the employment relationship may be re-established through a judgment declaring the nullity or unfairness of the dismissal, thus revoking the employer's decision to terminate the contract.

Furthermore, trade union rights cannot be considered as a concept independent of the existence of an employment relationship, but require an effective employment connection, depending at all times on the concrete performance of services by the employee.

Appropriateness of the procedural channel

The judges underline that the safeguarding and protection of the employees' representatives during the period prior to the possible declaration of nullity or unfairness of their dismissals is supported by the provisions laid down in article 180 of the Law Regulating the Social Jurisdiction, in the framework of the possibility of requesting interim measures. However, in this particular case, the plaintiffs did not avail themselves of this right.

To summarise, the chamber concludes that there has been no infringement of freedom of association. Consequently, the status of legal representative of the workers is extinguished until there is a judgment declaring the dismissal null and void or unlawful.


* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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