The Labor Procedure Reform (RPL) introduced new requirements for the exercise of the power that the employer has to unilaterally modify –when the reasons of the company require it– the conditions agreed with the worker from the beginning of the employment relationship, as well as as the faculty for free dismissal and the review procedures subsequent to each of these acts.
These requirements arose, above all, as a consequence of the strengthening of the protection of the principle of non-discrimination in employment and occupation. In addition, they are manifested in some aspects specifically introduced by the RPL during the three critical moments of the employment relationship: recruitment and selection (entry), development of the contract, and dismissal (exit).
The issue of non-discrimination has been one of the principal axes of the RPL. As a result, the employer cannot make any decision within the employment relationship –including dismissal– without having an accompanying objective justification. The preceding is derived from article 404 of the Labor Code (from now on, CT), which “prohibits all discrimination at work for reasons of age, ethnicity, sex, religion, race, sexual orientation, marital status, political opinion, national ancestry, social origin, affiliation, health condition, disability, union affiliation, economic situation or any other analogous form of discrimination.”
Impact on the three moments of the employment relationship.
Recruitment and selection process (the entry): when choosing the ideal candidate for the company from a group of applicants, the objective reasons for making the decision must be argued. In this sense, both the position’s profile and the specific occupational health requirements will constitute indicators of the objectivity and reasonableness with which the employer acts.
- During the development and execution of the employment contract: with an impact on processes such as promotion, training, reconciliation of personal and work life, performance evaluation, changes in salary schemes, changes in work schedules, etc.
- On dismissal (exit): it is the most contentious moment of all, for which the employer will be required to make his decision not correspond to discriminatory parameters and, therefore, be based on objective and verifiable causes that allow eliminating the suspicion that there is an infringement of a fundamental right of the worker.
Protection privileges as a limit to free dismissal. The cases in which the employer must request authorization from the Ministry of Labor and Social Security (from now on, MTSS) before dismissal are expanded, so that, in addition to those already existing in favor of pregnant or nursing workers, adolescent workers and those reporting sexual harassment, including those related to those who are exercising freedom of association (members, leaders, candidates, etc.); This is a complement to the reform made to the CT in 1993. If the employer does not comply with the request and obtain the proper authorization from the MTSS, before whom he must demonstrate the existence of a just cause for dismissal, the dismissal is null.
Summary procedures. The RPL introduces judicial procedures that guarantee greater protection against violations of the special jurisdiction system and against acts that are alleged to be discriminatory.
Such remedies are a subsidiary alternative to the ordinary work procedure and are also exclusive of the Amparo remedy (appeal for constitutional protection), at least and until now, if the object is the claim of the violation of the principle of non-discrimination.
A peculiarity of the summary nature of the process is that within 24 hours after receipt of the worker’s request, the judicial authority will process it and request a detailed report from the employer on the facts that motivate the action. The company must render the report under oath within five days of notification. If it is a violation of the due process of dismissal of a worker with jurisdiction, it must be accompanied by a copy of the file that demonstrates having processed and obtained the dismissal authorization. On the other hand, if what is alleged is a discriminatory act, including dismissal, a copy of the documents of interest to demonstrate the objectivity and reasonableness of the action must be provided.
The precautionary measure of reinstatement. The RPL expressly grants the judge the possibility of granting precautionary measures while the effects caused by the act that he claims are discriminatory or harmful to the right to due process continues (Article 543 CT). Such provisions, which the judicial authorities had rejected in the absence of a legal norm, are now granted in most cases, even when it was a possibility that should be assessed in light of the indications presented by the worker. The revocation appeal granted –which would typically require a more significant judicial analysis derived from an initial assessment of the evidence provided by the employer– has not achieved that objective either.
The proof. It is required that whoever alleges discrimination must indicate the facts on which said the allegation is based, as well as the terms of comparison that support the affirmation. The preceding is currently not regulated, but, by judicial interpretation, it is required that the indications of discrimination must be proven. The jurisprudence of the Spanish Constitutional Court, which has been continually cited by the Constitutional Chamber of the Supreme Court of Justice of Costa Rica, requires
the need for the worker to provide reasonable evidence that the business act violates his fundamental right (STC 38/1986, FJ 2), a principle of proof aimed at revealing, where appropriate, the hidden motive of the worker; an indication that, as the jurisprudence of this Court has been emphasizing, does not consist of the mere allegation of a constitutional violation but must allow deducing the possibility that it has occurred (thus, SSTC 166/1987, 114/ 1989, 21/1992, 266/1993, 293/1994, 180/1994 and 85/1995)”. Only once this first and inexcusable assumption has been covered, we added, “does the defendant bear the burden of proving that its action has real causes that are absolutely unrelated to the alleged violation of fundamental rights, as well as that they had sufficient entity to adopt the decision, only means of destroying the harmful appearance created by the signs. This is a real burden of proof and not a mere attempt to deny the violation of fundamental rights – which would clearly render the purpose of circumstantial evidence ineffective (STC 114/1989) –, which should lead to the conviction of the judge that such causes have been the only ones that have motivated the business decision, in such a way that it would have plausibly occurred in any case and regardless of any purpose that violates fundamental rights. In short, it is about the employer proving that such causes explain objectively, reasonably, and proportionately their decision, eliminating any suspicion that it hid the injury to a fundamental right of the worker (these criteria are reflected in SSTC 38/1981, 104/1987, 114/1989, 21/1992, 85/1995 and 136/1996, as well as SSTC 38/1986, 166/1988, 135/1990, 7/1993 and 17/1996). The absence of evidence thus transcends the purely procedural scope and determines, ultimately, that the evidence provided by the plaintiff deploys all its operability to declare the injury of the worker’s own fundamental right (SSTC 197/1990, FJ 1; 136 /1996, FJ 4, as well as SSTC 38/1981, 104/1987, 166/1988, 114/1989, 147/1995 or 17/1996).” (See sentences number STC 17/2005 of February 1, 2005, and STC 171/2003 of September 29, 2003). (Constitutional Chamber of the Supreme Court of Justice, at twelve hours and three minutes on August twenty-ninth, two thousand and eight, judgment No. 13240 of the Constitutional Chamber of the Supreme Court of Justice, of August 29, 2008).
Sometimes, the elements of proof are easy to provide because they are in an advertisement or a very notorious fact within the company. However, in other cases, it is more difficult to prove, especially in those of indirect discrimination, which occurs when the regulation or practice is apparently neutral, but in practice, leads to exclusion. For example, requiring job applicants to be of a certain height could disproportionately exclude women and members of certain ethnic groups. Unless a specific height is absolutely necessary to perform the task under consideration, this would be an example of indirect discrimination (International Labor Organization, https://www.ilo.org/declaration/principles/eliminationofdiscrimination/lang--en/index .htm).
Alternate conflict resolution. As an alternative to a possible conflict between the parties, derived from the unilateral modification of working conditions or dismissal, they can resolve their differences out of court by resorting to an alternative dispute resolution center. The RPL introduces a significant change, probably aimed at giving greater transparency to these agreements since it requires the presence of a lawyer or a union representative to assist the worker (article 456 CT), with whose help and that of the conciliator or mediator they can compromise the rights in dispute, except for the inalienable, unavailable and indisputable rights of workers (article 457 CT).
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