Null and Void Dismissal and Indemnity Guarantee
¿WAHAT IS AN INDEMNITY GUARANTEE?
The guarantee of indemnity is a principle that protects workers who exercise their rights against possible retaliation by their employers. It is a manifestation of the fundamental right to effective judicial protection, recognized in Article 24 of the Spanish Constitution, which guarantees the right to effective judicial protection, and in Article 4.2.g of the Workers' Statute, which recognizes the right of workers not to be discriminated against on account of their union activities or the exercise of administrative or judicial actions. In addition, the Constitutional Court and the Supreme Court have developed extensive case law on the guarantee of indemnity, establishing the criteria for determining when there is a violation of this right and the consequences arising therefrom.
WHAT DOES AN INDEMNITY GUARANTEE MEAN?
The guarantee of indemnity means that the worker cannot be harmed by the fact of claiming against the company for the violation of his labor rights, or for participating as a witness in a judicial process of another colleague, or not even for the fact of having announced his intention to claim. For example, if a worker sues his employer for non-payment of wages, he cannot be dismissed, penalized, transferred or modified in his working conditions for that reason. In addition, it also implies that the employer must respect the freedom and dignity of workers who claim their rights, and may not take measures that would retaliate against or disadvantage them.
To determine whether the guarantee of indemnity must protect the worker, it must be analyzed whether there is a causal relationship between the exercise of the right, or the claim of the same, and the measure adopted by the employer, that is, whether the measure has been taken as a direct consequence of the exercise of the right. It must also be assessed whether the measure is proportionate and reasonable, or whether, on the contrary, it is arbitrary or discriminatory.
WHAT ARE THE CONSEQUENCES OF A BREACH OF THE INDEMNITY GUARANTEE?
If it is proven that the company has adopted a measure detrimental to the worker as a consequence of having exercised his rights, it is considered that there is a violation of the guarantee of indemnity and, therefore, a null dismissal or an unjustified sanction. In this case, the employee is entitled to be reinstated in his or her previous situation, to receive the wages lost and to be compensated for the damages caused.
HOW IS THE VIOLATION OF THE GUARANTEE OF INDEMNITY PROVEN?
It is not necessary that there be direct or explicit proof of the relationship between the exercise of the rights and the prejudicial measure. It is sufficient that there is a reasonable presumption based on indications, such as the temporal proximity between the two facts, the absence of objective reasons for the business decision or the existence of a conflictive climate between the parties.
WHAT´S THE NEXT?
If you believe that you have suffered retaliation from your company for claiming your labor rights, do not hesitate to contact us. We are experts in labor law and we will advise you on the legal options you have to defend your interests. You can call us at 630-769-428 or send us an email to dtierno@proemabogados.com, or contact us now by clicking below.
We will be happy to help you.
David Tierno García
Attorney at Law.
Reg. No. 3072 Bar Association of Córdoba.
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