Disciplinary dismissal with evidence of harm to fundamental rights and its qualification: formulation, clarification or modification of the constitutional doctrine?

Comment on the Ruling of the Constitutional Court 61/2021, of 15 March, 1st Chamber, amparo action 6838-2019

Abstract

The STC 61/2021, of 15 March, endorsed the constitutionality of the dissociation between the nullity of the unlawful test due to the violation of the fundamental rights of the worker in its execution and the nullity of the dismissal. This constitutional doctrine addresses the controversial issue of the interpretation of Article 55.5 ET from the perspective of the constitutional right to effective judicial protection (Article 24 EC), classifying it as a mere question of ordinary legality. Some critical notes are made in the text regarding the legal basis of this constitutional doctrine, which abandons the interpretation of legality in favour of the effectiveness of fundamental rights and their protection in terms of full reparation of the injury, ending with an assessment of the impact of the reformulated constitutional doctrine on the guarantees of the digital labour rights of workers, given its particular relevance in the field of technological evidence.