A reference for a preliminary ruling was submitted by the High Court of Justice of the Balearic Islands, Decision of 29 August 2022.

Establishing the ratios of workers involved in a situation of collective redundancy usually leads to serious disputes among the parties. Up to now, numerous questions have been settled about whether or not different types of terminations of contract should be counted for the purpose of collective redundancy, such as those arising by subrogation of workers, those that result in workers requesting leave and even terminations of temporary contracts.

However, the High Court of Justice of the Balearic Islands has taken a further step forward, since it has submitted a request for a reference for a preliminary ruling (Decision of 29 August 2022) to the Court of Justice of the European Union related to two aspects concerning resignations. Firstly, the question was raised whether or not these resignations should be taken into account for the purpose of beginning the consultation period for collective redundancy and, secondly, whether or not resignations should be counted in the terminations in order to calculate the collective redundancy thresholds.

However… what questions does the Decision of the High Court of Justice of the Balearic Islands actually raise?

The High Court of Justice of the Balearic Islands seeks, through the Court of Justice of the European Union, to resolve its doubts about the correct application of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies.

We will focus on the second of the questions raised and the importance it could imply for the practical effects in the day-to-day practice of many companies.

The aforementioned Directive stipulates that the following are included in order to calculate the number of dismissals: terminations of employment contracts on the initiative of the employer, based on reasons not related to the worker, providing there are at least 5 dismissals.

So, what happens with resignations? There is no doubt at all that, under normal conditions, workers resigning in a company, even when they are terminations for reasons not related to the worker, cannot be considered terminations on the initiative of the employer but on the initiative of the worker, as stipulated in the Decision of the High Court of Justice of the Balearic Islands.

However, if a resignation takes place in a company crisis process, in which there is a possibility that dismissals will occur and in addition if it is a result of a company’s proposal consisting of holding an interview with another company to which part of its business has been transferred, a doubt arises of whether the terminations can be considered as caused on the initiative of the worker and not on the initiative of the employer, in the latter case they would indeed be counted for the purposes of the collective redundancy.

The Decision concludes with the interpretation that, in its opinion, is the correct one, since it deems that definition of dismissal includes all terminations of contracts for reasons not related to the worker, taking place in a situation of company crisis and a staff reduction plan on the initiative of the employer and, in any case, basically not being proposed by the worker, even if he/she consents to the reason for resignation in the company.

While awaiting the decision of the Court of Justice of the European Union …

As we have seen, the doubts raised by the High Court of Justice of the Balearic Islands deal with certain disputes that could be extremely important, above all, for the internal repercussions they could have on companies if the collective redundancy procedures are not applied and the thresholds have been exceeded.

We should bear in mind that most reorganizational processes in companies include resignations, for one reason or another. Therefore, by virtue of the decision adopted by the Court of Justice of the European Union, companies must take into account the worker’s real intentions since voluntary resignation is not the same as resignation that is not actually intended but agreed, because the former would not be counted for the purpose of collective redundancy but the latter could indeed be included in the calculations of thresholds.

Nevertheless, at the moment these are merely suppositions, we must hence wait for the decision to be adopted by the Court of Justice of the European Union to resolve all the doubts that were raised related to the calculation of resignations for the purpose of collective redundancy.