17/06/2020
What happens with dismissals during the state of alert?
Article 2 of Royal Decree-Law 9/2020 of 27 March states that force majeure and the economic, technical, organisational or production causes arising from the COVID-19 crisis cannot be understood as justifying the termination of employment contracts.
Despite the initial controversy generated by this article, this measure does not imply that a dismissal made in such terms should be qualified as null, but rather the impropriety of the extinction, and therefore the indemnification of the worker with the amount of 33 days per year worked instead of 20 days.
It would not be correct to talk about a ban on dismissal, but rather it seems that the legislator's intention has been to dissuade employers from resorting to this type of extinction by making compensation more expensive.
In addition to this measure, we must take into account that Royal Decree Law 8/2020 requires companies that have processed ERTES due to force majeure or economic, technical or productive causes linked to COVID-19, to undertake not to make any redundancies during the six months following the resumption of activity. The imprecision of this rule gave rise to two important questions that have already been settled by the Executive:
When is the activity understood to be resumed and what happens to those companies that do not comply with the commitment made?
It is understood that the activity has been resumed as soon as the workers return to the activity, even if this return is part-time.
Secondly, companies which do not comply with this undertaking shall be obliged to reimburse the amount of the levies from which they were exempted.
It is important to note that the commitment to maintain employment in companies where there is a risk of insolvency will not apply.
Can I fire a worker who is in an ERTE situation? Yes, a worker can be fired while in ERTE. It should be noted that this is a temporary suspension, but the employment relationship between the company and the worker still exists. However, in the opinion of this Lawyer, it will be necessary to return to work before the dismissal, and to do so taking into account the reservations expressed in the body of this document.
Paloma Centella
Lawyer
