In judgment No. 140/2021 of 12 July 2021,(1) the Second Division of the Constitutional Court decided that there was a violation of the fundamental right to effective legal protection (article 24 of the Spanish Constitution) in cases where the ordinary courts denied those affected by collective dismissals the opportunity to challenge the grounds of dismissal in their individual proceedings, due to an agreement reached during the consultation period.

The Constitutional Court resolved an appeal for constitutional protection against Supreme Court judgment No. 669/2018 of 2 July 2018. The case was originally reviewed by the High Court of Justice of Madrid. The Supreme Court ruling declared, applying the criteria of legal certainty, that in cases where valid agreements had been reached during a collective dismissal consultation period, the affected employees could not challenge the grounds of dismissal in their individual proceedings.

The Constitutional Court argued that article 51 of the Workers' Statute does not exclude the possibility of challenging the causes in individual proceedings because of the mere existence of a valid collective bargaining agreement. That being said, this possibility was foreseen in articles 41, 47 and 82 of the Workers' Statute. These articles presume the existence of justified grounds in cases where there was an agreement with the workers' legal representative.

The Constitutional Court also stated that article 124.13 of the Law governing the Labour Courts (LRJS) relating to individual proceedings refers to articles 120 to 123 of the same law, and that article 122.1 of the LRJS establishes that a dismissal is considered wrongful when a legal cause has not been proved.

In view of the above, the Constitutional Court considered that there was no legal framework to prevent someone from challenging the grounds of a dismissal for individual proceedings.

An analysis of the simultaneous existence of causes is crucial to determine whether a dismissal is justified. The Constitutional Court decided that the importance of collective bargaining and its validity for the purposes of legal certainty as defended by the Supreme Court was not in keeping with the existing constitutional provisions, since it was an unjustified restriction on the fundamental right to effective legal protection of employees.

As foreseen in article 124 of the LRJS, when a collective dismissal has not been challenged by the workers' legal representative, the law does not prevent the grounds invoked to justify the collective dismissal from being discussed in individual proceedings, even if an agreement has been reached with the workers' legal representative.

There are no homogeneous legal regulations regarding the agreements made during the consultation period regulated in the Workers' Statute. Only the procedures foreseen in articles 41, 47 and 82 of the Workers' Statute prevent individual challenges on the grounds justifying the measures agreed on during the consultation period. These regulations are not applicable to agreements made during a consultation period for a collective dismissal.

For further information on this topic please contact César Navarro or Carmen Bardi at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at


(1) JUR 2021\238317.