The Supreme Court admits the legality of the agreement on deferring the payment of compensation agreed during the consultation period of the ERE, in certain circumstances.
Following the prosecution of the collective dismissal procedure carried out in March 2012 by a construction company in Castellón, the High Court of Justice of the Valencian Community initially declared the dismissals unfair, considering the requirement established in article 53.1.b of the Workers' Statute, according to which the minimum legal compensation for collective dismissal of 20 days of salary per year worked must be made available to the affected workers simultaneously with the delivery of the termination notice, to be collectively unavailable, except when the cause invoked to justify the dismissal is economic, which did not occur in the present case, in which the company alleged production reasons, in which case the only part of the compensation that the High Court of Justice of the Valencian Community considers susceptible to being divided is that which exceeds the legal minimum.
However, the Supreme Court concluded that the agreement reached between the company management and the workers' representatives during the mandatory consultation period was legal, given that the agreement not only reduced the number of employees affected by the layoffs (from the initial 131 to the final 116), but also increased the amount of the minimum legal severance pay (from 20 to 25 days' salary per year of service). Regarding the payment method for the agreed severance payments, the agreement stipulated that "in light of the Company's serious liquidity problems and in order to ensure its viability, both parties agree that these severance payments, which exceed the legal minimum, will be paid within a maximum period of 12 months."
Notwithstanding the fact that, given its unique nature, the ruling does not yet constitute established case law, it can be concluded –at least provisionally– that the agreement on deferring the payment of compensation agreed upon during the consultation period of collective dismissal procedures may be lawful in certain circumstances similar to those that exist in the aforementioned case, in which the reduction in the number of affected workers and the improvement of the compensation amount have been taken into account.
Martí Milán Romera
Labor Law Area
Àmbit Assesor
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