Labor measures for the state of alarm (II): articles 2 and 5 of RD-Law 9/2020 –

By Pedro Sánchez Pérez

On March 28, 2020, the RDL 9/2020, by which some distinctive labor measures are adopted because of the well being disaster of COVID-19, thus complementing the trail initiated by RDL 8/2020, whose most related content material is detailed on this submit. The aim of the transient concerns that comply with is to lift some doubts and questions associated to the brand new labor measures, the significance of which is past any doubt.

Along with numerous measures associated to streamlining the procedures for contractual suspension or discount of working hours, the majority of the work content material of RDL 9/2020 is contained in its articles 2 and 5. Article 2 RDL 9/2020 contains an alleged prohibition of dismissals throughout the state of alarm. I say pretended as a result of, strictly talking, it doesn’t prohibit layoffs throughout this non permanent interval. Says the principle

Drive majeure and financial, technical, organizational and manufacturing causes coated by the measures of suspension of contracts and discount of working hours offered for in articles 22 and 23 of Royal Decree-Regulation 8/2020, of March 17, They can’t be understood as justifications for the termination of the employment contract or dismissal.

What it does is point out that enterprise causes motivated by the well being disaster or by authorities measures as a consequence of such distinctive state of affairs, can be thought-about as non permanent causes. And, consequently, they may open the door to the adoption of enterprise restructuring measures which can be additionally non permanent in nature, resembling contractual suspension or discount of working hours, as offered in articles 23 (for the well being disaster within the broad sense) and 22 RDL 8/2020 (for presidency measures). The truth is, as we indicated in our earlier submit, it may very well be understood that such an interpretation was already derived from the literal wording of RDL 8/2020 (though we justified it solely by referring to the causes of power majeure), with out the necessity for the brand new rule to have a fair larger impression on this side. Evidently the one factor that’s supposed, in brief, is to supply larger safety by eliminating the necessity for judicial interpretation to succeed in the identical conclusion, deriving it instantly from the normative textual content.

Nonetheless, the articles introduce some questions that have to be addressed. And it’s that it signifies that these causes is not going to be justifiable of the termination of the employment contract or dismissal. As is thought, the Staff’ Statute distinguishes between contractual termination for goal causes (artwork. 52 ET) and disciplinary dismissal (artwork. 54 ET). In gentle of the broad point out made within the textual content of the RDL, it may very well be understood that throughout the length of the well being disaster there isn’t a trigger for the adoption of both of those two measures. Nonetheless, the very nature of the trigger that’s being handled ought to redirect its results to the determine of goal termination, which raises doubts about its applicability to disciplinary dismissal, which comes into play in circumstances disconnected from such circumstances. Evidently the RDL prevents the discount of labor as a consequence of COVID-19 from permitting the employer to terminate the employment relationship as a consequence of a discount in efficiency (artwork. 54.2.e ET), however this principle would already be inapplicable as a result of the discount in efficiency is It must be because of the well being emergency and, subsequently, it couldn’t be thought-about that there was a severe and culpable breach of the employee’s obligation, as usually required by our rules

Article 2 of the RDL doesn’t indicate the prohibition of any contractual termination. Certainly, keep in mind that dismissals with out trigger solely result in the inadmissibility of the dismissal, and to not its nullity. Due to this fact, the one authorized consequence of the causal redirection can be, in any case, the absence of trigger within the dismissal or goal termination, which leads (basically) that it’s the employer himself who decides whether or not to reinstate the employee or validate the definitive breakdown of the contractual relationship by the fee of an indemnity of 33 days of wage per yr labored. Compensation which, in circumstances of short-term contracts, won’t ever be ample to dissuade the employer from making such a call. Though it may very well be thought-about that the principle establishes a brand new explanation for nullity of the contractual termination, the way in which through which the Royal Decree-Regulation acts could result in a unique conclusion. If he had needed to determine the nullity of the dismissal, he ought to have configured these as a brand new nullity case ex new, appearing instantly on the aircraft of authorized penalties, which might not go away room for doubt. But when the RDL itself begins from the causes to be thought-about, the authorized penalties in case of transgression should additionally stay within the common degree of the absence of trigger, which our labor legislation circumscribes to the inadmissibility.

Then again, article 5 RDL 9/2020 establishes a protecting measure for non permanent contracts, by advantage of which the well being disaster interval interrupts its length, each in its non permanent most and in its reference interval.

The suspension of non permanent contracts, together with coaching, aid and interim contracts, for the causes offered in articles 22 and 23 of Royal Decree-Regulation 8/2020, of March 17, will imply the interruption of the calculation, each of the length of those contracts, in addition to of the reference intervals equal to the suspended interval, in every of those contractual modalities, with respect to the employees affected by them.

If this norm had not been promulgated, the mere suspension of the employment contract would result in the survival of the contractual hyperlink with the suspension of the reciprocal obligations to work and to remunerate work (artwork. 45.2 ET), along with the provisions offered for this goal within the matter of social safety. However, in any case, with out altering the length of the contract. With the rule that I remark, when a brief employee is incurred in a state of affairs of non permanent suspension (not a discount in working hours, through which case the employment contract continues to show all its results), the length of the contract can be prolonged for a time equal to the interval through which it could have been suspended. And this each in its length in absolute phrases, and within the causal interval of reference that typically determines the contractual modality (for instance, within the eventual contract of artwork. 15.1.b ET).

Though the rule doesn’t expressly say so, making an allowance for that its will is that non permanent contracts can obtain the aim for which they have been entered into (as established within the explanatory memorandum itself in its second part), the automated consequence of the not too long ago authorized RDL is that the utmost length of every contractual modality can be prolonged for an equal time period (for instance, within the contract for a selected work or service). It additionally follows that this non permanent interval is not going to be taken under consideration for the needs of a attainable chain of non permanent contracts that might enable the employee to accumulate the standing of everlasting employee, in accordance with article 15.5 ET.

On conclusion, the brand new RDL provides authorized certainty in relation to the measures that the employer can undertake when these are taken within the midst of a well being emergency, with out implying prohibiting any termination of the employment contract. As well as, and making an allowance for that the authorized determine of the contractual suspension might elevate doubts, it’s specified that the time through which the contract is suspended is not going to be taken under consideration for the needs of its most length, which ought to have a direct impact on labor institutes that search to forestall fraud in non permanent hiring.


Picture: Alfonso Vila Francés

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