{"id":2046,"date":"2016-12-02T09:03:31","date_gmt":"2016-12-02T09:03:31","guid":{"rendered":"https:\/\/vila.es\/en\/?p=2046"},"modified":"2020-12-24T11:48:11","modified_gmt":"2020-12-24T11:48:11","slug":"calculaton-unit-determining-thresholds-separate-collective-dismissal-individual-objective-dismissal","status":"publish","type":"post","link":"https:\/\/vila.es\/en\/employment-and-social-security\/calculaton-unit-determining-thresholds-separate-collective-dismissal-individual-objective-dismissal\/","title":{"rendered":"THE CALCULATION UNIT FOR DETERMINING THE THRESHOLDS WHICH SEPARATE COLLECTIVE DISMISSAL FROM INDIVIDUAL OBJECTIVE DISMISSAL"},"content":{"rendered":"

Article 51.1 of the Worker’s Statute <\/a>(<\/span>Estatuto de Trabajadores – \u201cET\u201d) 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 Regulaci\u00f3n de Empleo – \u201cERE\u201d) or whether otherwise, each dismissal should be processed as an isolated case, as an individual objective dismissal procedure.<\/p>\n

It specifically establishes that a collective dismissal should apply if:<\/p>\n\n\n\n\n\n\n\n
N\u00ba of affected workers<\/strong><\/td>\nN\u00ba workers in the company<\/strong><\/td>\n<\/tr>\n
\u2265 10<\/td>\n< 100<\/td>\n<\/tr>\n
\u00a0\u00a0 10 %<\/td>\n\u2265 100 y \u2264 300<\/td>\n<\/tr>\n
\u2265 30<\/td>\n> 300<\/td>\n<\/tr>\n
\u00a0\u00a0 100 %<\/td>\n\u2265 5<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

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.<\/p>\n

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?<\/strong><\/p>\n

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.<\/p>\n

The High Court had the opportunity to decide on said matter in its judgement of 18th<\/sup> March 2009<\/span> <\/a>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 \u201carticle 51.1 of the Worker\u2019s Statute unequivocally refers to the company as a unit for the calculation of the affected workers<\/em>\u201d.<\/p>\n

However, following said judgement, the Court of Justice of the European Union (\u201cCJEU\u201d) came to judge this matter in light of article 1 of Directive 98\/95<\/a><\/span>, the contents of which was transposed into Spanish law by way of the aforementioned article 51.1 of the Worker’s Statute.<\/p>\n

Namely, the CJEU addressed said issue in the following judgements:<\/p>\n