Forensic practice has enabled us to observe how petitions for moral damages are included in the claims for infringement of fundamental rights on quite a few occasions. 

For anyone who is not familiar with them, moral damages are basically associated with physical or mental suffering, pain or impairment and are different from equity damages (such as loss of profits and consequential damages).

Section three in Article 179 of the Spanish Act regulating the Labour Jurisdiction requires that claims petitioning protection of public fundamental rights and freedoms must clearly express the right or freedom that has been violated and the amount of the compensation claimed, suitably specifying the damages caused and determining the relevant circumstances in order to calculate the compensation petitioned, including the seriousness, term, consequences of the damages and the calculation basis for the estimated harm caused to the worker unless these damages are petitioned and it is difficult to estimate them.

Case law includes this in, among others, the judgement of the Supreme Court of 5 February 2015, Appeal 77/2014, which ruled that when petitioning compensation for having been caused moral damages and bearing in mind that the pain, suffering or impairment involved had no direct or sequential conversion in economic terms, there was a greater margin of discretion in their assessment, reducing the importance of determining objective parameters in order to calculate them.

However, although such argument, in a theoretical manner, makes complete sense, in practice it implies a real headache for the courts and legal operators because, due to such lack of precision and, as a lesser evil, it was determined that applying the sanctions stipulated in the Spanish Labour Offences and Sanctions Act (LISOS) was valid guideline criteria to undertake the difficult task of calculating these type of damages claimed (among others, the judgement of the Supreme Court of 2 February 2015, Appeal 279/2013).


Greater flexibility when calculating the amount of the compensation for moral damages

Along these lines, the screw has recently been tightened even more for us, with two recent judgements ruled by the Supreme Court on 23 February and 20 April 2022.

The first of the judgements (Appeal 4322/2019) analyses a case in which the plaintiff, in addition to the revocation of the dismissal due to violation of fundamental rights committed by the company, petitioned a ruling admitting moral damages, without having made even the least effort to specify the precise damages caused or to provide grounds for the economic petition. In this respect, in this judgement, the Supreme Court fully opted for the route of flexibility and pointed out that “the appealed judgement should have admitted the claim to acknowledge compensation for moral damages in favour of the worker, due to the pleadings related to this specific aspect explained in the claim writ being sufficient for such purpose, greater specification not necessarily being required in the explanation of the objective parameters that are very difficult to provide bearing in mind the very nature of the moral damages claimed”.

Regarding the calculation of moral damages, the judgement decided that “the compensation for moral damages opens the path to the possibility that it is the judicial body that must cautiously calculate the amount for the compensation without being able to require that the plaintiff provides a more exact or specific basis for its calculation”.

In order to estimate the amount, the court deemed it was appropriate to use criteria such as the workers’ seniority or average salary: “As far as its calculation is concerned, it should be taken into account that the labour relationship barely lasted two years (…), the worker’s average salary during that time being about €1,300 a month; therefore the amount claimed for moral damages of €15,525 is far too high and disproportionate since the ruling that the dismissal was revoked already implied that the worker must be reinstated and receive the salary he had not been paid (…) The amount of the sanction referred to in Article 40 of the LISOS, which the plaintiff uses as a reference parameter, is based on a minimum amount of €6,251 up to a maximum of €25,000, therefore it would be more reasonable and suitable to set the compensation at the lowest amount of this fine (…)”


Are we heading towards an increase in compensation?

The second of the aforementioned judgements of 20 April 2022, Appeal 2391/2022, on a case that was also for revocation of dismissal with violation of fundamental rights, the Supreme Court applied the flexibility of the requirements to admit moral damages and calculate the amount of compensation in cases of violation of fundamental rights.

However, this is not the new aspect that can be observed by reading this judgement but instead what the judgement specifies explicitly is with regards to overcoming excess use of the sanctions in the LISOS when calculating the compensation for these damages, the court pointing out the following: “it is not, per se, sufficient to fulfil the twofold function of compensating damages with relative precision and the use as a dissuasive element to discourage future violations of fundamental rights (…) since the range for calculating the sanctions in the LISOS for the same type of offence (minor, serious, very serious) is excessively broad”.

Here is what turns out to be the most important aspect since, according to the court, the use of the sanctions in the LISOS must be “accompanied by an assessment of the circumstances arising in each specific case. Aspects such as the worker’s seniority in the company, the time the violation of the fundamental right took place, the seriousness or infringement of the right, the consequences caused to the worker’s personal or social situation or the subject who holds the infringed right, possible recidivism of the infringing conduct, the multi-offence nature of the injury, the context in which the conduct could have taken place or an attitude tending towards preventing the defence and protection of the violated right, among others, which could be assessed bearing in mind the circumstances of each case, must all be used as elements to be taken into account in order to calculate the compensation.”


What is the future holding for us?

Well, how will all this end up? The judgement itself provides us with another clue about its application in practice due to ruling on the compensation for moral damages petitioned by the plaintiff in the case in suit that, although firstly the amount claimed was €150,000, in a subsidiary manner, €76,087.80 was petitioned, equivalent to two and a half times the worker’s average salary.

Therefore, the Chamber decided that the company should be ordered to pay the amount of €60,000, which implied about two annual payments of the worker’s salary and was within the average range of the sanctions stipulated in the LISOS, bearing in mind such amount was within the framework of Article 40 of the LISOS, taking into account the seniority of the labour relationship (18 years) and that the worker was in a situation of temporary disability, the origin of which led to the claimed violation of fundamental rights.

This new step taken by the Spanish Supreme Court means the following conclusions can be drawn; the violation of fundamental rights will be irrefutably related to it being found that moral damages have been caused, since these are presumed, which now, in order to calculate the compensation will not only be subject to the sanctions stipulated in the LISOS, but they must also be weighed up with a series of elements, such as the worker’s seniority, the seriousness of the violation of rights, etc., their calculation being subject to the “caution” of the judicial body.

As a result of these new judicial rulings, the requirements for moral damages included in claims that are filed for violation of fundamental rights will be more stringent, being fully subject to judicial criteria and the “caution” of the judge in order to calculate the amount of the compensation, resulting in an interesting situation over the next few months that we will pay a great deal of attention to.



Author: Oscar Cano, lawyer at RSM Spain