On 19 October 2022, the Spanish Supreme Court resolved a legal controversy that had been raging since the adoption of Royal Decree-Law 9/2022 of 27 March 2020, adopting complementary measures, in the labor field, to alleviate the effects derived from COVID-19. This act adopted by the government was applicable until 31 May 2021.
Article 2 of Royal Decree-Law 9/2022 provoked legal uncertainty because its drafting was ambiguous: “Force majeure and the economic, technical, organizational and production causes that underpin the measures for the suspension of contracts and reduction of working hours provided for in articles 22 and 23 of Royal Decree-Law 8/2020, of 17 March, cannot be understood as justifying the termination of the employment contract or dismissal”.
The controversy that arose around it was whether it prohibited dismissals – in which case the sanction would be the nullity of the dismissal – or whether such dismissals should be considered unfair (improcedentes) – in which case the sanction would be compensation for workers. Cases reached the High Courts of Justice of several autonomous communities, which mostly defended the latter interpretation (Madrid, Catalonia, Castilla y León, Andalucía, Galicia). However, High Courts in the Basque Country and Asturias adopted the former interpretation of nullity.
The Spanish Supreme Court resolved the controversy, by considering that Royal Decree-Law 9/2022 did not prohibit dismissals but that they should rather be considered unfair, as they lacked cause due to its Article 2. The Court held that “fraudulent dismissal is only null and void if [the prohibition] has been provided for by the legislator” and, in this sense, “Article 2 of RDL 9/2020 does not contain a prohibition”.
Reference: STS 3834/2022 - ECLI:ES:TS:2022:3834.