Termination of employment contracts

The Department of Private Law of the University of Barcelona and the labor, compensation and benefits area of Pérez-Llorca organized at its Barcelona headquarters a session in which the need to grant a hearing in the termination of employment contracts whose cause lies in the behavior or performance of the worker was analyzed. Likewise, during the seminar the speakers assessed the impact of Artificial Intelligence (AI) in the framework of labor relations and, specifically, in the justification of the termination of the contract.

The seminar was attended by Joan Agustí Maragall, Magistrate of the Social Chamber of the High Court of Justice of the Balearic Islands; Pilar Rivas Vallejo, professor of labour law and social security at the University of Barcelona; and Manel Hernàndez, partner of labour, compensation and benefits at Pérez-Llorca.

Disciplinary dismissal

The first point of the colloquium was the requirement of prior hearing of the worker in cases of disciplinary dismissal, one of the potential measures that could emanate from the investiture agreement between PSOE and Sumar (although it is not expressly formulated). Agustí pointed out that, although the full application of this requirement to all workers is not included in Spanish labor legislation, such requirement is contained in Article 7 of Convention No. 158 of the International Labor Organization, to which Spain is a party. Agustí, who in a pioneering decision for which he was rapporteur (Judgment dated February 13, 2023 of the Social Chamber of the High Court of Justice of the Balearic Islands) applied the aforementioned precept directly, recalled that “Article 7 of ILO Convention 158 is sufficiently clear and does not allow it to be inapplied to disciplinary dismissals”.

In this regard, Hernàndez pointed out that the scope of Article 7 of Convention 158 does not explicitly indicate that it can only be used in the case of disciplinary dismissals, since it refers to the worker’s performance as a reason, in addition to conduct. And the latter could be related to any of the causes foreseen for objective terminations, such as supervening ineptitude or failure to adapt to the technical modifications made to the job.

Agustí insisted that this rule may not have been applied previously, due to the existence of a previous pronouncement of the Supreme Court in an apparently different sense. And he advocated an intervention by the legislator to avoid situations of legal uncertainty. Both the direct application of the Convention and the legal consequences that its non-observance may trigger in the classification of a dismissal that is subject to prosecution must be resolved.

Use of Artificial Intelligence systems

For his part, Rivas evaluated the search for the requirement of prior hearing of the worker contained in the different regulations governing IA. These rules would come into play when the decision to terminate an employee’s contract is taken by means of an automated IA process (Convention 108+ and the General Data Protection Regulation, both of which provide that the decision must be preceded by a hearing of the interested party). At this point, Rivas assessed the impact of the proposals that will change this issue when they come into force: the ‘Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence’ and the ‘Directive of the European Parliament and of the Council on the improvement of working conditions at work in the form of digital platforms’, as both also refer to the necessary human intervention before adopting business decisions with significant effects on workers, as in the case of a dismissal.

Finally, Hernàndez reviewed some of the initiatives for the reform of labor regulations that are part of the Coalition Government program, such as the reform of the Substantial Modification of Working Conditions, the reduction of the working day to thirty-seven and a half hours, or the increase in the Minimum Interprofessional Wage (SMI), And to highlight that in some of the proposed reforms (such as those relating to the development of the Statute of Labor or the Law on the use of time, among others), expressly contemplates references to the use of algorithms and artificial intelligence.