The Ministry of Labor will bring to the Council of Ministers tomorrow a reform of the Workers’ Statute that will establish the nullity of any dismissal that occurs as retaliation against a worker who reports a case of corruption within the company. In this way, these situations will have the same protection as the violation of the fundamental rights of the worker. The regulation provides for the modification of articles 4, 12.2, 27, 53, and 55 of the Statute.
With this modification, the reporting of criminal acts or regulatory violations will be recognized as a right of the worker. If it is proven that the dismissal occurs as retaliation for having reported these behaviors, the termination of the contract will be null. Unlike unfair dismissal, this classification obliges the company to reinstate the employee and pay the back pay, which are those that the employee has stopped receiving from the dismissal until reinstatement.
The protection will not be limited to disciplinary dismissal. It will also extend to other business decisions that may be used as retaliation, such as dismissal for objective reasons, substantial changes in working conditions, transfers, salary reductions, or job changes. The reform also contemplates the probationary period, so that the termination of the contract during this time may be declared null if it is shown to be related to the report made by the worker, according to ministerial sources.
In practice, the regulation modifies protection against retaliation related to the so-called duty of confidentiality (the professional obligation not to disclose confidential information) or the trust relationship between company and employee. That is, the fact that a worker reports possible unlawful conduct cannot be considered, by itself, a breach of their work obligations that justifies their dismissal.
To activate this protection, it will not be necessary to use a single reporting channel. The worker may be protected if they communicate the facts through the company’s internal mechanisms, go to the authorities or courts, or make the information public, including the media. In all cases, there must be a relationship between the report and the measure adopted by the company for it to be considered retaliation.
The reform also foresees extending protection to certain people in the informant’s family and close environment when they may suffer retaliation related to the report. The aim is to prevent pressure measures from being directed against people linked to the worker who reported the facts.
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Protection will apply when the worker reports facts about which they have a reasonable suspicion. It will not be necessary to prove in advance the existence of a crime or violation, since according to Labor sources, the principle of good faith prevails in labor relations. In practice, dismissal will only be justifiable if the company proves that the worker acted with intent, for example, in cases where the report was filed after being notified of their dismissal.
The reform will be incorporated into a legislative package against corruption that the Government plans to approve this Tuesday and which must subsequently continue its parliamentary process. It also represents an expansion of the law approved in 2023, which incorporated the European directive on whistleblower protection into Spanish law. That regulation already prohibited retaliation against those who reported possible violations and established sanctions of up to one million euros. However, the Government considers that specific protection in the labor field was still insufficient.
According to ministerial sources, until now the general prohibition of retaliation did not translate into a specific cause for nullity of dismissal. This left the interpretation of each case in the hands of the courts and allowed some retaliation measures to be formally presented as business decisions for other reasons. The modification of the Statute seeks to expressly establish the nullity of dismissal.
Ministry sources indicate that there are no official statistics to determine how many workers suffer retaliation for reporting possible illicit practices. The difficulty in quantifying these cases is due, among other reasons, to the fact that companies usually do not acknowledge that a dismissal is related to a report. However, they assure that it is a frequent situation and recall that the Independent Whistleblower Protection Authority has also pointed out labor protection against retaliation as one of the areas where deficiencies persist in the current system.
