Many workers ask themselves this question..

Once the state of alarm ended and the extensions of the ERTE of force majeure decreed by the Government ended, workers are going to face three possible scenarios:

1.- END OF ERTE AND RESUMPTION OF THE WORK CONTRACT:

After the conclusion of the state of alarm or the extensions of the ERTE agreed by the Government with the agreement of the social agents, and therefore finalized the circumstances that motivated the regulatory file, the worker will continue with the employment relationship normally.

It is important to remember that the terms of temporary contracts will be recalculated, that were suspended, and will no longer be considered unemployed for all legal purposes.

During this time, will have traded normally through the fund created by the government, However, the right to extra pay or vacations will not have accrued during the suspension of the contract by ERTE if the suspension of the contract was at 100%.

2.- END OF ERTE. THE COMPANY CONTINUES WITH THE ACTIVITY, BUT FIRE THE WORKER.

It must be borne in mind that it is not true that dismissal has been prohibited in Spain. What has been prohibited is to use the situation of the current health crisis to go to layoffs for ECONOMIC CAUSES, TECHNIQUES, ORGANIZATIONAL OR PRODUCTIVE, a less expensive type of termination of employment for the employer, and with the exception of non-application to those companies in which there is a risk of bankruptcy that may carry out dismissals in this way without breaching the commitment to maintain employment.

It should also be remembered that the commitment to maintain employment for six months applies only to ERTES of force majeure that carry the exemption of Social Security contributions, and the period of six months begins to count from the date of resumption of activity by the company, understanding that the activity is restarted with the return to work of the people affected by the file, even if it is partial or only affects part of the workforce.

Said the above, What are the consequences of dismissal after ERTE?

If the dismissal is carried out during the six months following the end of the ERTE, the employer must pay Social Security that the State has entered for said worker during this period, and the calculation of the compensation must be adjusted to the salary that the worker received before the ERTE, as established in the Judgment of the TS of 27 June 2018, in doctrine unification.

It seems that the applicable criterion is that while art is not expressly revoked. 2 of the R.D.. 9/2020, instead of compensation of twenty days per year worked, with a maximum of twelve monthly payments, the worker will be entitled to compensation for unfair dismissal this is, thirty-three days of salary per year of service, with a maximum of twenty-four monthly payments except for those contracts that are older than the labor reform of 2012, in which forty-five days will be paid for the periods previously accrued to the same.

3.- END OF ERTE. THE COMPANY ENTERS A BANKRUPTCY.

The current economic situation derived from the cessation of activity caused by the state of alarm by Covid-19 will cause that after the end of the ERTE, many companies are going to go to a bankruptcy for not being able to maintain their activity.

In this case, The workers will see how the ERTE becomes an ERE with the termination of work contracts under the formula of objective dismissal. In this case, the workers will receive compensation of twenty days per year worked, with a maximum of twelve monthly payments.

The previous compensation, and in the event that the company cannot afford to pay for its financial difficulties, will be assumed by FOGASA, with established limits.

If it must be taken into account that there is going to be a significant saturation of the social courts, there is also a clear lack of material and human resources in those, that they will suffer a collapse in the foreseeable avalanche of lawsuits derived from the end of the erte and subsequent dismissals, generating a significant delay in the effective resolution of the same.