On 22 August 2024, Organic Law 2/2024, of 1 August, on equal representation and balanced presence of women and men (the “Law on Equality”), published in the Spanish State Gazette on 2 August 2024 came into force. Since then, it has been heatedly discussed due to a “technical” error that provoked the “accidental” elimination of two grounds for objective nullity. The affected grounds (established as articles 53.4 b) and 55.5 b) of the Workers’ Statute) had just been incorporated into the Statute by way of the Royal Decree-Law 5/2023, of 28 June. However, instead of the most up-to-date version of the text, introduced by way of the said Royal Decree-Law 5/2023, serving as the basis for the amendment, a previous version was used. In this way, the two aforementioned newly added grounds for objective nullity were eliminated.
Such legally established or objective nullity of a dismissal does not imply a general prohibition to dismiss workers. It is rather an indirect prohibition or exclusion of the dismissal being declared “unfair”. In other words, the dismissal of workers, in this case, to whom one of the circumstances described in articles 53.4.b) and 55.5.b) of the Workers’ Statute apply, may only be declared “fair” or “void”; but not “unfair”.
In Spanish employment law, this distinction has certain relevance. The unfairness of the dismissal would mean that the company would have to choose between reincorporation of the worker, plus payment of the wages not earned, or payment of the compensation for unfair dismissal. Since 12 February 2012, such compensation equals the salary for 33 days per year of service, with a maximum of 24 monthly salaries. The nullity of the dismissal, on the other hand, would entail the reincorporation of the worker, plus payment of the wages not earned, as well as the potential payment of moral damages or damages for the violation of their fundamental rights. Hence, limiting a dismissal to it being only “fair” or “void” implies stronger protection for workers.
On the upside, the Law on Equality adds the protection of workers who have become victims of sexual violence in the Workers’ Statute by means of its controversial ninth final provision. Yet, the “technical” error which eliminated the two mentioned grounds for objective nullity of dismissal has weakened the protection of workers in the situations described, i.e. of those who have requested or are enjoying an adaptation of the working day as regulated in article 34.8. of the Workers’ Statute, as well as those who have requested five days’ leave due to accident, illness, hospitalisation or surgery of a family member, as regulated in article 37.3.b) of the Worker’s Statute.
In short, this means that as of 22 August 2024 and until the effective rectification, companies will be able to dismiss workers in these two situations more easily. Although, as labour and employment law experts have already indicated, the affected workers could claim a violation of the right to the guarantee of indemnity (i.e., the right of workers not to suffer reprisals from the company as a consequence of exercising their rights). Under such a claim, the dismissal could be declared fair, unfair, or void (and not only fair or void as in cases of objective nullity). Accordingly, the scope of protection of these workers is not only not the same as that of the regulation prior to 22 August 2024, but also has worsened considerably.