Feasibility of the ERE (or DOI) after ERTE COVID-19

regarding the STS [Social (Plenary)] of 22 February 2022

Abstract

The emergency regulations that have arisen in response to the economic and social consequences of the Covid-19 pandemic are generating new scenarios of legal dispute. One of them concerns the interaction between the ERE (in its case DOI) and the ERTE due to Covid; that is to say, the transcendence that, in terms of the legal regularity of the external flexibility measures, the previous internal flexibility measures adopted by the company to alleviate the effects of the aforementioned pandemic must have. The main doubts in this matter have arisen around the possible violation of the "prohibition of dismissals", introduced by the emergency regulation. The doctrine is divided, and the judicial pronouncements oscillate between unfairness (majority position) and the nullity of the dismissals, although there is still no express pronouncement from the Supreme Court. The STS [Social (Plenary)] of 22 February 2022 does not address this question, rather it responds to a situation that is also generated in this dialectic relationship between ERE (in its case DOI) and previous ERTE Covid-19, which is that relating to terminations based on ETOP causes that are structural and not merely cyclical in nature, even if they are related to Covid-19. In this case, the Supreme Court considers that the company can validly resort to the application of external flexibility measures, as long as it can prove the structural ETOP causes, generally originating in a situation prior to the pandemic and, without prejudice to the fact that the pandemic may have aggravated them.