In Spain, pursuant to the Organic Law of Freedom of Association (“LOLS” by its acronym in Spanish), the number of trade union representatives that can be appointed depends on the number of employees in the company or workplace according to the following scale:
- From 250 to 750 employees: 1 trade union representative (TUR)
- From 751 to 2.000 employees: 2 TUR
- From 2.001 to 5.000 employees: 3 TUR
- From 5.001 onwards: 4 TUR
Of course, such trade union representatives have a special protection against dismissal that ordinary employees do not have. One of these additional rights is, in the event of an unfair dismissal, the capacity of deciding whether the employee prefers the severance pay corresponding to unfair dismissal or to be readmitted to the company with the same working conditions as before the dismissal (the decision corresponds to the company in the case of an ordinary employee).
In these cases, where the company/workplace has less than 250 employees, even if there is no legal requirement to appoint trade unions representatives, it can be done. However, such employees do not have the status of trade union representatives, but trade union spokespersons. The difference between both is that spokespersons have no special rights.
In this new ruling of the Spanish Supreme Court, a company dismissed an employee who was a trade union representative and the employee asked for his right to decide whether he had to receive a severance pay corresponding to unfair dismissal, or if he had to be rehired by the company. However, the company had less than 250 employees and, from a strict point of view, this employee was a trade union spokesperson with no special rights.
In this case, despite the fact that the employee was legally a trade union spokesperson (and not a trade union representative) and the right to decide belonged to the company, the Spanish Supreme Court ruled that the employee had the status of trade union representative, since the employee argued that he was a trade union representative instead of spokesperson, and the company did not oppose such statement. Thus, those facts that deprived the employee of his status of trade union representative were neither alleged nor proven by the company.