Article 51.1 of the Worker’s Statute (Estatuto de Trabajadores – “ET”) establishes that the thresholds for determining whether the dismissal of X employees of a company should be processed within the framework of a collective dismissal procedure (Expediente de Regulación de Empleo – “ERE”) or whether otherwise, each dismissal should be processed as an isolated case, as an individual objective dismissal procedure.
It specifically establishes that a collective dismissal should apply if:
| Nº of affected workers | Nº workers in the company |
| ≥ 10 | < 100 |
| 10 % | ≥ 100 y ≤ 300 |
| ≥ 30 | > 300 |
| 100 % | ≥ 5 |
As it may be seen, the unit of reference used by the lawmakers to determine the thresholds is the total number of employees of the company.
Having said that, what happens if the company has two or more workplaces? Should the unit of reference continue to be the total number of workers in the company or, on the other hand, should it be the number of workers in the workplace where those workers whose employment relationship is to be terminated effectively provide their services?
The question is of basic relevance given that the answer indicates whether the dismissal of X employees of a company should be dealt with on an isolated basis as individual objective dismissals, or whether, in contrast, collectively within the framework of a collective dismissal with the corresponding information and consultancy procedures.
The High Court had the opportunity to decide on said matter in its judgement of 18th March 2009 in which it came to establish that in spite of the existence of more than one workplace, the reference should still be the total number of workers employed by the company, based upon the reasoning that “article 51.1 of the Worker’s Statute unequivocally refers to the company as a unit for the calculation of the affected workers”.
However, following said judgement, the Court of Justice of the European Union (“CJEU”) came to judge this matter in light of article 1 of Directive 98/95, the contents of which was transposed into Spanish law by way of the aforementioned article 51.1 of the Worker’s Statute.
Namely, the CJEU addressed said issue in the following judgements:
These judgements demonstrated that the Spanish lawmaker had not correctly transposed Directive 98/95 (“Directive”) into Spanish law since the Directive refers to the workplace and not the company as a whole as a calculation unit for determining the thresholds for objective dismissal.
In view of this, the plenary session of the High Court, in a recent judgement dated 17th October 2016, has had to complement its criteria regarding the issue under discussion, assuming that, effectively, in determined cases, the unit of reference for calculation purposes to determine whether there is a case for collective dismissal should be the workplace and not the company as a whole, as maintained previously.
Having established this, the High Court was forced to determine the qualitative and quantitive criteria to be fulfilled by a workplace in order to be taken as a unit of reference for calculation purposes.
In this regard, and with regard to qualitative criteria, the High Court establishes that the definition of workplace provided in article 1.5 of the Worker’s Statute should be taken into account, as well as the definition set by the CJEU in its judgements, as “[…] distinct unit, which has a certain permanency and stability, which is attached to the execution of one or various specific tasks and which has at its disposal a set of workers, as well as the technical resources and a degree of organisational structure, which allows it to complete the tasks” (section 49 of the “Wilson” case).
As far as the quantitative criteria are concerned, the High Court, in line with the Directive and the aforementioned judgements of the CJEU, determines that a workplace may only constitute the calculation unit to determine the thresholds of objective dismissal if “it habitually employs in a stable manner more than 20 employees”.
Pursuant to the above, the High Court ends up stipulating that the judicial bodies should make their own interpretation of article 51.1 of the Worker’s Statute in accordance with the Directive, so that when the aforementioned qualitative and quantitative criteria are fulfilled, the unit of calculation for determining the thresholds which differentiate collective dismissal from individual objective dismissal should be the workplace where the affected employees effectively render their services and not the number of workers of the company as a whole.
Ismael Marina Schneider
Vilá Abogados
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2nd December 2016
