The courts open the door to excessive compensation in the event of an accusation of harassment

A recent ruling by the TSJ of Catalonia on 30 January last, has broken the storm in granting an additional compensation (dissuasive compensation) to a worker in the event of a declaration of unfair dismissal.

However, this is not the first time that the courts have expressly alluded to the possibility of establishing dissuasive severance pay in the event of unfair dismissal.

On the other hand, the Ministry of Labour has announced that it is considering the possibility of regulating this issue by law.

Have the courts ruled? Let us look at some examples:
The judgement of the TSJ of Catalonia of 30 January 2023

This ruling is very recent, the TSJ of Catalonia has awarded additional compensation to that corresponding to unfair dismissal, 33 days’ salary per year worked.

The legal compensation, which is assessed at less than €1,000, is clearly insignificant and does not compensate for the damage caused by the loss of the job, nor does it have a dissuasive effect on the company.

It is therefore appropriate in this case to award additional compensation in accordance with the provisions of ILO Convention 158 and the European Social Charter.

In the case in question, an additional compensation to that which is legally provided for in the case of unfair dismissal is requested.

The SCJ partially upheld the worker’s appeal and ruled that if the company opted for compensation:

• Instead of reinstatement, compensation of €4,435.08 is imposed.
• 941.78 € as compensation for unfair dismissal.
• 3,493.3 € as a deterrent indemnity.

The two rulings of the TSJ of Catalonia of 23 April 2021

On 23 April 2021, the Supreme Court of Catalonia handed down two rulings on the issue of additional compensation. In both cases, although the request for additional compensation is rejected, it is made clear that this request is perfectly feasible, but only if certain requirements are met:

1. On the one hand, the notorious and evident insufficiency of the compensation because it is manifestly insufficient.
2. On the other hand, the existence of illegality, fraud of law or abuse of rights in the company’s decision to terminate the contract must be clear and evident.

In the first case, the request for dissuasive compensation was rejected, because if the worker had alleged the specific damages (in the specific case in question, the need to travel, his expenses, the rent, the consequential damage due to the loss of a previous job or the moral damage of abandoning a consolidated family and social environment) and these had been accredited, as this had not been the case and the solution to the conflict.

In the second case, it ruled in favour of awarding an additional dissuasive compensation. Specifically, it set the quantum of compensation for dismissal higher than that set by the legislator of 33 days’ salary per year of service, namely at the equivalent of 6 months’ salary.

The judgement of the TSJ of Catalonia of 14 July 2021

In the first instance, the SC declared the worker’s right to receive additional dissuasive compensation.

Specifically, it awarded compensation in excess of that established in art. 56 of the ET in the amount of 5 months’ salary, plus the amount of the compensation at which the law rates the loss of the job, which, in this case, taking into account the seniority and accredited salary.

The SCJ reasoned that the necessary requirements to be able to request the dissuasive compensation had not been met.

The ruling of the TSJ of Aragon, December 2022: the compensation must be in line with the legally established amount

The Supreme Court of Aragon is more categorical than the Supreme Court of Catalonia and rules out that a dissuasive compensation can be requested without further ado.

It makes it clear in its judgment that, in the case of unjustified disciplinary dismissal, the fixed compensation, which the judgment under appeal condemns to pay, is that which is legally due, given the salary and period of service, without it being possible to recognise additional compensation, insofar as neither an infringement of fundamental rights nor the existence of damage greater than that derived from the loss of employment has been accredited.

The ruling of the Supreme Court of Andalusia of 14 December 2022

In line with the SCJ of Aragon, the SCJ of Andalusia maintains a more restrictive criterion than that maintained by the SCJ of Catalonia.

Although it also admits that in exceptional circumstances it would be possible to request a dissuasive compensation, it understands that this is an unusual possibility that must be adapted to objective limits, as otherwise it would incur in possible subjectivisms that would lead to confusion among operators and legal uncertainties.

The ruling of the TSJ of Galicia of 21 October 2022: in many cases, the legally assessed compensation will be adequate

The TSJ of Galicia also pronounces in favour of the possibility of being able to ask for a dissuasive compensation but in very specific cases.

It makes it very clear in its ruling that the compensation calculated in accordance with article 56.1 of the ET (which, in order to quantify the value of the work lost, takes into account objective criteria such as: seniority and salary:

• seniority and salary.
• the module of 33 days which, although historically higher, cannot be considered, in general terms, as an insufficient module.

Hence the need to individualise those cases in which the amount of compensation is manifestly insufficient in relation to the damage caused to the worker by the abusive dismissal, or is not dissuasive in view of the circumstances, which must be connected, among other circumstances, with the existence of a fraudulent or abusive exercise in the company’s decision to terminate the worker’s contract, apart from the fact that all of this must be alleged and proven.

In the specific case in question, the SCJ considers that this has not been proven and, therefore, the request for additional compensation is dismissed.

Will there be more deterrent severance payments?

Como vemos, diversos TSJ se han pronunciado expresamente sobre la posibilidad de solicitar una indemnización disuasoria o reparadora pero condicionada al cumplimiento de unos requisitos y descartando mayoritariamente las peticiones.

En todo caso, la concesión de una indemnización adicional ni va a ser automática ni se va a conceder de forma masiva al estar condicionada al cumplimiento de unos requisitos concretos.

Ahora bien, tras la entrada en vigor de la Carta Social Europea revisada (en vigor en España desde el 1 de julio de 2021) es previsible que haya un aumento de las peticiones de indemnizaciones disuasorias y habrá que estar pendientes del criterio que vayan manteniendo otros juzgados de lo Social y TSJs, ya que el camino hasta el Tribunal Supremo va a ser largo.

En todo caso, si más Juzgados de lo Social y TSJs estiman la pretensión de indemnización adicional disuasoria, esto llevará a aumentar la conflictividad en los juzgados, puesto que actualmente son muchos los despidos que se zanjan en el acto de conciliación con el ofrecimiento de declaración de improcedencia por parte de la empresa.

Sin embargo, si los trabajadores ven la posibilidad de pleitear por la concesión de una indemnización adicional, esto llevará a menos acuerdos en conciliación (sin avenencia) y, por tanto, a más casos elevados a los juzgados.

En definitiva, más inseguridad jurídica (a salvo de que se clarifique el tema vía normativa) y mayor conflictividad en los tribunales de lo Social.

Cualquier duda que les surgen respecto a este tema no duden en dirigirse a nosotros, telefónicamente a Isabel Torre Carazo o a su e mail itc@btsasociados.com, estaremos encantados en atenderles.