One of the rights or guarantees par excellence granted to workers by law within the legal-labour scope is the guarantee of indemnity, normally defined as the right of all workers not to undergo reprisals by the company after having submitted a complaint against it related to any rights concerning their working conditions, its origin being included in Article 24 of the Spanish Constitution, which guarantees the right to Effective Judicial Protection.

The result, if any, of any corporate action as a way of taking revenge against a worker will be ruled null and void. In the event of dismissal due to these circumstances, this will be ruled null and void due to infringing the aforementioned Article 24 of the Spanish Constitution.

Although it is true that the guarantee of indemnity lacks a legally specified definition, the Spanish courts have undertaken the task of defining such an important concept. For example, this occurred when the Supreme Court ruled its judgement of 24-6-2020, by considering that “the guarantee of indemnity implies that, if a legal action is filed or the preparatory or prior actions are carried out to file one, there must be no harmful consequences within the scope of private or public relations for the person acting as the plaintiff, since the right to effective judicial protection (Article 24.1 of the Spanish Constitution) is not only ensured by means of the actions of the judges and courts but it is also a guarantee of indemnity”.

However, are the internal complaints submitted by the company’s workers considered sufficient for indemnity to protect the worker from possible dismissal?

The fact is that, up to quite recently, the guarantee of indemnity did not include the internal complaints submitted within the private scope of the company, at least as a general rule.

For example, the complaints or objections raised related to certain rights or working situations that a worker in your company could be involved in or situations when your workers could file any kind of claim for the sole purpose of precisely obtaining this protection from their employer have been situations in which the guarantee of indemnity has not been activated.

However, this situation could be completely turned around now, after the publication of Act 15 of 12 June 2022 on equal treatment and non-discrimination. Moreover, it is specified in Article 6.6 of this law that reprisal must be deemed to mean “any adverse treatment or negative consequences that a person or group could undergo if the latter acts, participates or collaborates in administrative or judicial proceedings aimed at a discriminatory situation being prevented or ceased, or due to having submitted a complaint, claim, report, legal action or appeal of any kind for the same purpose”.

Including this new aspect leads to a significant impact on the consequences that could arise due to a possible dismissal, specifically in cases when a worker could have submitted an internal complaint to the company in the days, weeks and even perhaps months before the dismissal notice is received, because now there is a greater possibility that such dismissal will be ruled null and void due to the dismissal being expressly considered as a reprisal by the company in this case.

The recent judgement of the Supreme Court, which has not yet been published

A post has been recently published on the official website of the General Council of the Judiciary, the title of which is “The Supreme Court rules the dismissal of a worker is null and void due to this taking place one day after submitting an internal complaint about not being paid his overtime”.

Although the full publication of the text of the judgement is not yet available, the brief information about the case in question that RSM has been able to obtain is related to the disciplinary dismissal of a worker that took place just one day after stating that he disagreed with not being paid his overtime. As a reason for his dismissal, the company alleged that his performance had decreased, which it could not manage to prove at the trial.

The judgement sustains that, as a general rule, internal complaints do not activate the guarantee of indemnity except in cases when a worker that submits a formal complaint against his/her company is immediately dismissed based on a reason that cannot subsequently be proven at the relevant procedural time.

Although it is true that, according to the brief summary published on the website of the General Council of the Judiciary, it seems the Supreme Court is continuing to sustain that, as a general rule, internal complaints submitted to a company do not activate the guarantee of indemnity, it is also true that we must pay great attention to the judgements ruled on similar cases in the future because, pursuant to the provisions in Article 6.6 of Act 15/2022, reprisal is considered to exist when a complaint of any kind has been submitted, making such fact applicable, as cannot be otherwise, to the labour field and activation of the guarantee of indemnity.

If, after reading this article, you have any doubts in this respect, in the Labour Department of RSM Spain we will be delighted to provide you with advice, so please do not hesitate to contact us.


Author: Carlos Diaz, lawyer at RSM Spain