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The social courtroom of the Spanish Supreme Court in the judgment dated on 16/11/2016 and the appeal number 1341/2015 rejects the appeal of a cleaning company against the judgment of the High Court of Justice of Madrid, which said that an employee, who came from a country outside the EU, was right. The employee was working for 8 years when the company notified her dismissal because of the loss of her residency and work permit.

The court points out that the contracts done to foreigners cannot include the unexpected loss of the work permit as a valid reason for the dismissal and, therefore, non compensation for it. The court states that “it would be an unfair term the one that is based in a circumstance which coincidence cannot influence at all the behavior of the worker”.

The Supreme Court rejects the appeal of the cleaning company against the judgment of the High Court of Justice of Madrid, which said that an employee, who came from a country outside the EU, was right. The employee was working for 8 years when the company notified her dismissal in November 2013 basing their decision on the loss of her residency and work permit. The high court of Madrid considered it as an unfair dismissal and sentenced the company to pay a compensation of 16.363 Euro to the employee.

In the solved case, the working contract did not include expressly a term for the dismissal based on the unexpected loss of such permit, but the company, supported by another judgment of the High Court of Justice of Madrid, defended that such term was implicitly included in the contract and that it should be applied the article 49.1 of the Estatuto de los Trabajadores (Workers’ Statute), which states that the contract will be terminated “for the reasons validly stated in the contract, unless they constitute an abuse of the manifest right on the part of the employer”.

Unlawful Dismissal

The Spanish Supreme Court rejects this argument and considers that the correct doctrine is the one of the judgment that admits that the worker was right: “Using section b of article 49.1 of the Workers’ Statute for terminating the contract is not something according to Law. In this concrete case, it would be enough with pointing out that the working contract does not state anything in this regard. (…) However we should go further in our considerations since it would not be admissible at all that the parties of the contract anticipate as a valid term of termination the occurrence of a circumstance related to the negotiating capacity of the working party, which can be included in section 1 of the aforementioned article 49 and, in short, keeps visions of complete similarity with those provided in article 52 of the Workers’ Statute”.

For the Spanish Supreme Court “there is no doubt that the loss of the permit to work in Spain makes it impossible to continue with the employment contract. Nor can it be denied that we are faced with a case in which the reason of termination of the contract is alien to the company.

However, our legislator wants to provide a framework of protection to workers whose contracts are terminated by the concurrence of a legal cause and, as we have already stated, the edges of this protection must also be guaranteed to foreign workers even when they lack of permit to work in Spain but they had it before and provided their services effectively”.

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