On June 27th, 2025, a decision of great relevance for Spanish labour law was made public: the European Committee of Social Rights (ECSR) resolved the complaint filed by the Spanish Trade Union Confederation of Workers’ Commissions (CCOO) against Spain, questioning the adequacy of protection against dismissal in our country. This decision, which has generated intense legal and social debate, focuses on the insufficiency of compensation for unfair dismissal and, especially, the situation of temporary workers in fraudulent contracts and non-regular permanent employees in Public Administrations.
Context and Scope of the ECSR Decision
The ECSR, responsible for ensuring compliance with the European Social Charter, concluded that the applicable Spanish legislation violates the right to adequate protection against dismissal (Article 24.b of the Charter) in three aspects: the insufficiency of compensation for unfair dismissal, the impossibility for courts to order reinstatement in these cases, and the lack of adequate protection for temporary workers in fraudulent contracts and non-regular permanent employees in the public sector.
The decision highlights that the current compensation caps do not allow actual damage to employees to be redressed nor sufficiently deter the employer, and that the judicial practice of granting additional compensation is still exceptional and not widespread. Furthermore, the Committee insists that reinstatement should be a real option to be assessed by the courts, not just by the employer.
Why Is This a Labour Issue and Not Merely a Contractual One?
The issue of protection against dismissal and compensation in these cases is addressed from the perspective of labour law and not just contract law because it affects fundamental workers’ rights recognized in international and European regulations. Employment is not a simple relationship between equals; there is an imbalance that justifies the intervention of protective labour rules, especially regarding job stability and protection against unjustified dismissals. Therefore, the debate on the sufficiency of compensation and the possibility of reinstatement goes beyond the contractual sphere and is at the core of labour rights.
Fraudulent Temporary Contracts
According to Spanish legislation, when a temporary contract is used fraudulently (for example, linking temporary contracts to cover permanent needs), the worker acquires the status of a permanent employee. If an unfair dismissal occurs, the compensation and consequences must be the same as for any permanent worker: 33 days’ salary per year of service, up to a maximum of 24 monthly payments.
However, the ECSR warns that, in practice, compensation remains insufficient and does not match the actual damage suffered, especially in cases of limited seniority or low wages. In addition, the possibility of reinstatement is left in the hands of the employer, not the judge, which limits effective protection.
Non-regular permanent Employees in the Public Administration
In the case of Public Administrations, the figure of the “non-regular permanent employee” arises when a worker has been temporarily hired in fraud of law, but the position they occupy is subject to regulatory coverage (for example, through a competitive examination). When the Administration fills the position through the legally established procedure, the non-regular permanent employee’s contract is terminated, but the recognized compensation is usually lower: 20 days’ salary per year of service, up to a maximum of 12 monthly payments, equating it to an objective dismissal.
The ECSR considers that this difference in treatment between non-regular permanent employees and temporary workers in fraudulent contracts is not justified and that protection should be equivalent to that of any permanent worker, both in the amount of compensation and in the possibility of reinstatement. Furthermore, expert Carmen Salcedo Beltrán, in her concurring opinion, emphasizes that the practice of limiting compensation and not recognizing back pay in these cases represents a setback in workers’ rights, and highlights the need to adapt Spanish legislation to European standards.
Is the ECSR Decision Binding in Spain? And What Happens in Other European Countries?
The ECSR decision is not directly binding in the sense that it does not automatically oblige Spanish courts to change their case law or Parliament to amend the law. However, Spain has ratified the European Social Charter and the Collective Complaints Protocol, committing itself to respect the Committee’s decisions and to adapt its regulations to comply with European standards. In fact, the Supreme Court and the Constitutional Court themselves have recognized the relevance of these treaties and the need to interpret national legislation in accordance with them. In other European countries, such as France or Italy, ECSR decisions have prompted legal reforms and changes in judicial practice, although adaptation has not always been immediate or uniform. The debate on the sufficiency of compensation and protection against dismissal is, therefore, a shared challenge at the European level.
What Could Change After the Supreme Court Plenary on July 16th?
On July 16th, the Plenary of the Social Chamber of the Supreme Court will address, among other issues, the application of the ECSR doctrine and the equalization of rights between temporary workers in fraudulent contracts and non-regular permanent employees in the Public Administration. The decision adopted by the Supreme Court will be key to determining whether a more protective interpretation, aligned with European standards, is consolidated, or whether the current differences persist.
In short, the ECSR decision and the debate opened in the Supreme Court could mark a turning point in the protection against dismissal in Spain, especially for the most vulnerable groups in the public and private sectors.
Shameem Hanif
Vilá Abogados
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11th July 2025
