The prohibition on dismissal is contrary to EU law: the Spanish case (Il Quotidiano del lavoro of Il Sole 24 Ore, 22 February 2021 – Alberto De Luca, Luca Cairoli)

One of the emergency measures adopted to tackle the epidemiological emergency and prevent it from disrupting work and social life is currently the focus of a heated debate in Italy – namely, the prohibition of dismissal for justified objective reasons, introduced in Italy by the “Cura Italia” decree and subsequently extended several times. The repeated extensions of this measure over the last 12 months have stabilised the limitation of a company’s freedom to manage employment levels based on its actual needs, also apart from effects attributable to the epidemic.  This has generated serious reflection on the potential conflict between this prohibition and the constitutional freedom of private economic initiative pursuant to Article 41 of the Italian Constitution.

 The situation in Italy is similar to that of other European countries, including Spain, where Royal Decree-Law No 9 of 27 March 2020 introduced the ‘prohibiciòn de despido’, i.e. a prohibition on the dismissal of personnel for economic reasons associated with the epidemic emergency and which, as in Italy, has been extended on numerous occasions. The Court of Barcelona’s decision has considerable resonance for Italy, as Spain has a very similar social, economic and legislative context (Juzgado de lo Social N. 1 de Barcelona, Sentencia 283/2020, 15 Dec 2020).  The Spanish court, called upon to rule on a dismissal justified for economic reasons that took place while the prohibition was in force, first analysed and established the existence of the economic reasons for the termination (drop in sales and orders due to the pandemic) and then examined the relationship between the latter and the aforementioned emergency legislative provision. The Spanish court found that, although Article 2 of Royal Decree-Law No 9 of 27 March 2020 provides that economic, technical, organisational and production reasons cannot justify dismissal during the emergency period, it is equally true that the same Decree justified (in its explanatory introduction) the adoption of these legislative measures based on their temporary and exceptional nature, in order to ensure that the effects of the Covid-19 crisis did not undermine or prevent the restoration of economic activity and the safeguarding of employment.

Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.