The outsourcing of services as a cause of dismissal for objective reasons, so that this dismissal is understood as in accordance with the law, requires that the measure adopted of the termination of the employment relationship, is a rational measure for the organizational effectiveness of the Company, and that as a consequence of its application allows its viability, and that the outsourcing decision is not a simple means of achieving an increase in business profit.
The company can resort to outsourcing formulas, outsourcing part of its productive activity, it is what is called productive decentralization, this way of proceeding is totally lawful, and it is commonly used as a vehicle to carry it out, understanding that this second company is specialized in the services that are intended to decentralize: cleaning, maintenance, telephone support, etc.
First, it is understood that decentralization must occur in a service or productive activity that does not suppose the main or inherent part of the business, the “core bussiness”, and that with this decentralization, the main company will be able to gain in productivity, quality of service and / or costs associated with the activity.
In some cases, the company, taking advantage of productive decentralization, subcontracting with an external company a certain activity, decides to amortize the internal jobs by making a dismissal based on the objective causes of article 51 or 52, depending on whether or not they exceed the thresholds to consider it collective dismissal, because from the decentralization, those positions will no longer have a reason to exist in the company.
It is on this last point, on which our doctrine has been coming for years, highlighting what are the necessary requirements to estimate this type of dismissals according to law.
In essence, the judicial control to this type of measures is limited or control that the accreditation of the organizational and productive causes can not be based on the mere salary savings produced by the termination of certain employment contracts and the hiring of other workers with lower wage cost, for this reason our doctrine establishes that the objective cause alleged by the company must be accredited, in such a way that it is linked to the circumstances of the company, and has sufficient importance and entity to justify a dismissal.
For this reason, it is required that the dismissal measure adopted, in addition to being justified, must also be sufficient. 1.) reasonable, 2.) weighted and 3.) Provided.
As a jurisprudential reference, we can bring up the Judgment of the Supreme Court of November 29, 2010, which states that “… it is necessary to recall our view that the termination decision must constitute a “rational measure in terms of the effectiveness of the productive organization and not a simple means of achieving an increase in corporate profit”. That assertion is based on the analysis of Article n effect, Article 52(c) of the ET which requires that there be an objectively established need to repay jobs, that is to say, that it does not allow it to be carried out simply for the mere convenience of the employer.
It is intended that the measures alleged exist, and that they are serious enough to justify a restructuring of the workforce, and that these depreciation of posts are not a pretext or excuse to dismiss, but that this measure is the most appropriate and reasonable for the company.
Thus the STS of 29 November 2010 adds that “… so that the measure contributes to “overcoming the difficulties” of the company, and these – as we pointed out above – can only be invoked effectively when they are not surpassable with another “rational measure” in order to productive efficiency and – therefore – no simple means to increase the “business profit” are presented. Well, this doctrine makes it very difficult to justify the “need to amortize” a certain job – as in the case under dispute – in the same company there are numerous vacancies or other positions are going to be created, and simultaneously or later they are filled with the hiring of new workers. Such a decision – to amortize a position and at the same time fill many other vacancies or ex novo creation – is not presented as the “rational measure” of which we spoke before, but rather an interested – although unjustified – business decision, which does not conform to the aforementioned requirement of ineluctability of the cessation by imperatives of production or by the proper management of the company”.
Similarly, other Judgments such as the STS of May 12, 2016, add that the mere allegation of productive and organizational causes do not sufficiently justify the entity and the importance that the company has to make the decision of the dismissal, but that the task of the judge is to interpret that these alleged productive and organizational causes are not based exclusively on a mere salary saving that would entail the simple replacement of some workers for others more economical.
So, what is the business situation that allows dismissal to be triggered as an objective cause in a productive decentralization, and that the action is considered sufficiently proportional and adequate confirms our jurisprudence? Well, the answer we have in one of the first Judgments that began to deal with this matter (STS March 21, 1.997 and STS of September 30, 1998), in which it is explained that outsourcing has its fit when certain circumstances concur that demonstrate that the use of the contract is a skillful means to ensure the viability of the company or its competitiveness can play as a legitimizing cause of the extinction decision, being mandatory that decentralization is the rational measure for organizational effectiveness that allows viability and not a simple means to achieve an increase in business profit.
Therefore, on the basis of this reasoning, the company that wants to apply the objective dismissal, in order to execute a productive decentralization, will have to prove that in the situation in which it finds itself there are facts or circumstances that under the umbrella of a judicial control of the dismissal, allow to verify that they have a logical causative effect that justifies it, thus avoiding possible abuses of rights in the use of these business actions.
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