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Can a worker be fired while the company is in ERTE?

Labor Law
Can a worker be fired while the company is in ERTE?

The temporary employment regulation file or its acronym ERTE, is a measure that allows companies to suspend employment contracts, as a kind of flexibility that gives companies the facility to survive in situations of supervening circumstances (Covid 19) that endanger the continuity of the economic activities of the company.

As its name indicates, it is a temporary measure, whose primary objective is to ensure that companies stay afloat and can meet their financial obligations, without the need to incur a legal procedure for declaring bankruptcy.

What are the main characteristics of ERTEs?

As indicated by labor lawyers, the essential characteristics of the ERTE are given by the fact that it is a circumstantial collective dismissal and allows companies to suspend - yes, temporarily - the salary of workers, even when they are part of the company, being therefore in the same way, suspended the extra and additional bonuses to what constitutes fixed salary amounts.

However, the ERTE, on this occasion in addition to being temporary, has a very peculiar characteristic that is given according to Royal Decree-Law 463/2020, of March 14, which establishes the obligation of companies to maintain its employees during the 6 months after the resumption of its economic activity.

This circumstance leads us to ask ourselves the important question, about the status of the ERTE requested due to the health crisis that occurred due to the Covid-19 virus and which constitutes a kind of concern for some companies.

How to fire a worker while in ERTE? Is it possible to fire a worker in these circumstances, or, on the contrary, would I find myself breaking the law?

Well, the answers to these questions we will give you here, since it is a matter of mere importance at the present time and you need the necessary legal advice to prevent your company from engaging in illegal acts that could end up being counterproductive for the economic future.

Let's imagine several assumptions:

Assumption number one, which in this case would be the inability of the company to meet its financial obligations, thus forcing itself to file for bankruptcy.

In the true assumption that the company cannot continue to comply with its obligations and declares bankruptcy or that it cannot continue with its production, the law allows it in this case to fire its workers.

Article 47 of the Workers' Statute: "Suspension of the contract or reduction of working hours for economic, technical, organizational or production reasons or derived from force majeure: The employer may suspend the employment contract for economic, technical, organizational or production reasons. , in accordance with the provisions of this article and the procedure determined by regulation. "

In the opinion of our law firm, it is understood that economic causes concur when a negative economic situation emerges from the results of the company, in cases such as the existence of current or anticipated losses, or the persistent decrease in its level of ordinary income, or sales.

In any case, it will be understood that the decrease is persistent if during two consecutive quarters the level of ordinary income or sales of each quarter is lower than that registered in the same quarter of the previous year.

Should I compensate workers? 

Yes, workers are entitled to compensation of 20 days' salary for each year actually worked, up to a maximum of 12 monthly payments. 

The second assumption would be due to any of the assumptions of article 54 of the Workers' Statute and grounds for justified dismissal for disciplinary reasons: 

Grounds for disciplinary dismissal:

  • The employment contract may be terminated by decision of the employer, through dismissal based on a serious and culpable breach of the worker.

The following will be considered contractual breaches:

  • Repeated and unjustified absences from work or punctuality.
  • Indiscipline or disobedience at work.
  • Verbal or physical offenses against the employer or the people who work in the company or the family members who live with them.
  • The transgression of contractual good faith, as well as the abuse of confidence in the performance of the work.
  • The continuous and voluntary decrease in the performance of normal or agreed work.
  • Habitual drunkenness or drug addiction if they negatively affect work.
  • Harassment on the grounds of racial or ethnic origin, religion or convictions, disability, age or sexual orientation, and sexual harassment or on grounds of sex against the employer or the people who work in the company.

 Is there an obligation to compensate the worker in the event of dismissal for disciplinary reasons?

In these cases, the worker has no right to compensation.

In these cases, the dismissal must be notified in writing to the worker, stating the facts that motivate it and the date it will take effect.

Contact us, and our lawyers specializing in labour law will study your specific case. 

At Forcam Abogados we have offices in BarcelonaMadrid and Reus.