The plenary session of the Social Chamber of the Supreme Court once again maintains its rejection of additional compensation in the event of unfair dismissal. He already expressed his opposition in December 2024, again in July 2025 and does so again today by rejecting a cancellation incident presented by the legal representation of the losing worker this summer. This is not a surprise, since the Supreme Court generally rejects presented incidents of annulment, but it is important because the order constitutes a key preliminary step for the case to reach the Constitutional Court.
This is one of the thorniest debates in the Spanish trade union debate, with its judicial and legislative derivations. The current debate begins in 2021, when Spain ratifies the European Social Charter, a treaty which recognizes in its article 24 the “right of workers dismissed without valid reason to adequate compensation or other appropriate relief”. Some union activists then interpreted that the system valued in days in force in Spain (33 days per year worked, 45 for periods before the 2012 reform; with a limit of 24 monthly payments, 42 before the change) contravenes this precept, since compensation, especially in short-term employment relationships, does not necessarily have to be compensatory.
Several courts and tribunals have made the same interpretation and awarded additional compensation depending on the employee’s situation. This possibility was interrupted in December last year with a first judgment of the Supreme Court and even more in July, when the High Court made a decision taking into account the ratification of the European Social Charter. This position of the Supreme Court (with which three of the 13 magistrates disagreed) was widely criticized by the unions because the European Committee of Social Rights, the body of the Council of Europe responsible for interpreting the Charter, ruled twice (first in response to a complaint from the UGT then in response to another from CC OO) that Spain did not respect this precept due to its system evaluated in days.
Today the Supreme Court rejects the annulment incident filed by lawyer Raquel Miñambres. This lawyer defended a worker who requested additional compensation from his company. Social Court number 3 of Barcelona had granted it, but the High Court of Justice of Catalonia revoked it after appeal. Faced with this decision, the employee appeals, presents a contrasting judgment and requests a unification of the doctrine, taking as a reference a judgment of the Superior Court of Justice of the Basque Country which granted additional compensation. The procedure reached the Supreme Court, which decided in the opposite direction to that represented by Miñambres.
The lawyer, with the support of the UGT union, filed the request for annulment and it was admitted for processing on September 9. This approach consists of an extraordinary appeal against a final decision when it is considered that fundamental rights have been violated. Concretely, the annulment incident presented by Miñambres considers that the fundamental right to effective judicial protection as well as the right to non-collective or indirect social discrimination, both included in the Spanish Constitution, have been violated.
Three months later, on December 9, the Social Chamber of the Supreme Court issued the dismissal order, to which EL PAÍS had access. “Under the appearance of a violation of the right to effective judicial protection, it is only a contradiction with the motivation of the judgment and, also, with the doctrine of the Constitutional Court itself, which, at the time, declared that the legislator’s option of a system of lump sum compensation for dismissals was consistent with the letter and spirit of the fundamental norm,” responds the Supreme Court.
In this order, the Court insists that Article 24 of the European Social Charter is not “directly executive”, but requires internal regulatory development for its application. In other words, he considers that the European standard encourages the State to legislate, but does not authorize the judge to replace the national law (the system evaluated in days) with his own estimate of adequate compensation. This demand for regulatory reform came to fruition in November last year, with the Council of Europe’s request to Spain to carry out “the review and modification of the relevant legislation”, with the aim of “ensuring that the compensation awarded in the event of illegal dismissal, and any scale used to calculate it, takes into account the real damage suffered by the victims and the individual circumstances of their case”.
Regulatory change
This petition, together with resolutions issued by the European Committee of Social Rights (ECSR), supports the unions’ demand for regulatory reform. This is an objective shared by the Ministry of Labor, in favor of the revision based on these declarations from Strasbourg, but also of the program of the PSOE and the Sumar government. The parties promise to “put in place guarantees for workers against dismissal, in accordance with the European Social Charter”. And since the ECSR is the body responsible for interpreting the Charter, Sumar argues that it is imperative to address change.
The employers’ association has a radically different reading: it believes that the Supreme Court has settled the debate and that legislative reform is not taking place. Their opposition to change is such that after a first meeting on the subject, the CEOE and Cepyme announced that they would no longer participate in the negotiations opened by the Ministry of Labor. CC OO and UGT are finalizing a joint reform proposal that they will present to Díaz’s ministry, with very few options to achieve legislative results.
The bosses’ rejection eliminates the possibility that the right-wing majority in Congress will support the change agreed by Labor and the central parties. In this case, sources close to the positions of each party argue that Junts would not be the only obstacle, and that the PNV would not accept the change either. Moreover, there is not even an agreement within the government: the Ministry of the Economy, despite the promise of the government pact, rejects the modification.
Beyond what Labor and the unions agree on and the legislative route taken by the project, the legal route continues before the Constitutional Court. Miñambres and the UGT specialist who supports his initiative, the deputy general secretary of trade union policy Fernando Luján, indicate, as they already indicated this summer, that they will file an appeal for protection before the Constitutional Court. Through this instrument, an individual can report the violation of their fundamental rights. However, admission to the processing of amparo applications is very limited. According to reports from this court in recent years, the admission rate is approximately 1% of all appeals presented.
With information from Nuria Morcillo.
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