Regulation of Dismissal and Mobilization of Labor Rights: a Critical Perspective on the Spanish System

Abstract

In recent times, reflections on the institution of dismissal have focused almost exclusively on understandings of employment protection as a cost for the employer and on the supposed negative effects of these costs for net employment creation. These approaches –more or less favourable to the regulatory intervention of the State– are usually in debt to the paradigm that sees labor law as consisting of a number of restrictions on the “free” market established in order address certain social issues. 

This paradigm is not so much wrong as it is incomplete. For that reason this work aims to start from a different approach. Certainly, labor law isn’t an element disconnected from the labor market that distorts the “pure” interaction between the supply of and demand for labor, but it plays, amongst others, a role in forming that market. Market construction, in terms of maximization of its social effectiveness, is carried out through a re-balancing of power between employees and employers which requires the empowerment of workers. The “protection” of workers is not an end in itself, but rather a tool to provide them with power in the context of unequal relations of production.

Taking these distinct approaches as a starting point, this article argues that dismissal is the main institution through which the legislator’s intervention may have a significant impact on the power relationship between the parties. Hence it is the cornerstone of labor law, determining its entire effective application and, therefore, the mobilization of rights ‘in the shadow of the law’ in the day by day of employment relations. This article identifies the elements that dismissal regulation should have in order to be effective, offering at the same time a global critique of the Spanish model of employment protection, with special consideration to the alterations suffered under the Labor Reform of 2012.