The main challenge posed by this ground for dismissal undoubtedly lies in proving underperformance. On this point, the ruling of the Supreme Court (STS) of 23 March 1990 (R. 2339) holds that "for this circumstance to constitute a breach within the meaning of paragraph (e) of that provision (Article 54 of the Workers' Statute), it would be necessary for both the dismissal letter and the statement of facts in the first-instance ruling to include the essential comparative element required to establish underperformance... Furthermore, it would also be necessary to demonstrate that such conduct was both voluntary and sustained." In my view, the standard set by this ruling is excessively strict and represents the approach most commonly applied today, at least as regards the requirement of voluntariness, as we shall see when addressing that aspect. The ruling of the Central Labour Court (STCT) of 21 January 1986 (R. 307) is particularly relevant in my opinion: "The misconduct alleged requires proof of comparative benchmarks external to the employee's own activity, specifically, the underperformance attributed to the employee, which in turn requires proof of a prior normal level of performance, a contemporaneous event, equal conditions, and a resulting consequence, namely the reduction in output."
It is clear that the comparative element is essential to proof, as indicated in the STCT of 19 May 1983 (R. 4473), which states that in order to quantify the reduction in the employee's performance, "...two comparisons are available: one with comparable colleagues performing the same function, who achieve twice the output, and another with the employee's own prior conduct." The courts have further established that this comparison must be made on a like-for-like basis, as noted in the STCT of 2 July 1980 (R. 4013), which observed that "where the case involves a new route and a role different from that previously performed, the employee's output is difficult to compare with what had been achieved up to that point, and this comparison is fundamental to establishing a consistent decline in the results of their daily work." At times, even a like-for-like comparison is insufficient, as is evident from the STS of 21 February 1990 (R. 1128), which notes that "these difficulties increase when the work in question is, as in this case, assembly-line work, where the inactivity or reduced output of one member of the line necessarily affects those working after them," or the STS of October 1989 (R. 7173), which states that "in the overall assessment of the evidence, the measurement systems used do not offer reliable benchmarks by comparison with other workers... owing to the difficulties involved in evaluating waiting times, the different categories of tasks performed, and the absence of official standardisation."
No discussion of this topic would be complete without reference to some examples of how the supreme courts and the Central Labour Court have assessed cases of underperformance. For instance, the ruling of the Central Labour Court of 8 April 1983 (R. 2844) refers to "a lack of quality requiring the same task to be repeated up to three times"; that of 7 May 1986 establishes that "all colleagues were performing between 85% and 100%, with the exception of the claimant, whose output ranged between 65% and 34%"; that of 10 June 1986 (R. 4186) notes that "the employee reduced sales in which he was involved by 50% in 1984"; that of 10 September 1986 (R. 7542) states that "with normal output set at 100, the claimant's weekly performance fluctuated between 29%, 31%, and a maximum of 66%"; that of 8 January 1987 (R. 154) records "a comparison between the 10 to 15 units produced per hour by the claimant and the 23 to 30 units produced by the person who replaced him over the same period"; that of 21 April 1987 (R. 8192) finds that "over approximately the two months taken as a reference period, the claimant's output was consistently below 80% of the normal standard"; that of 16 March 1983 (R. 2163) notes that "the claimant reduced the lorry's load from 9.97 m³ to 7.92 m³, without any objective justification"; and that of 3 May 1988 (R. 21154) establishes that "the output achieved was one third below the agreed level, which justifies the dismissal".
On the same subject, the Supreme Court has also issued significant decisions. The ruling of 2 October 1985 (R. 4650) establishes that "during the seven-month period under review, there was no output whatsoever in two of those months, and output was negative in another… accordingly, such a result cannot be considered normal, in the absence of any circumstances capable of justifying the conduct described in the established facts"; that of 12 July 1985 (R. 3755) notes that "during the period in question, the claimant's activity fell by 32% compared with the previous year, while other colleagues operating in the same market and performing the same duties recorded sales increases of 41% and 42%"; that of 25 March 1983 (R. 1195) establishes that "it cannot be regarded as normal performance for a sales representative to go 134 days without making a single sale for the company for which he works"; and, finally, a particularly notable case is the ruling of 22 December 1983, which concerns the deficient preparation of an intellectual work product and which the High Court characterises as follows: "Presenting data tables as one's own original work, incorrectly copying texts in a manner that distorts their meaning, omitting data or commentary intended as a summary, and defects in the collection and organisation of data of such a nature that they can only be attributed to carelessness and omissions that are entirely deliberate."
B) Circumstances that do not justify underperformance, and those that do, according to case law
A number of circumstances have been identified that Spanish courts have considered insufficient to justify underperformance when raised by claimants:
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Employer's failure to make Social Security contributions: According to the STCT of 21 February 1984 (R. 1590), this failure does not justify underperformance.
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Prior disciplinary sanction imposed on the employee: The STCT of 7 May 1986 (R. 3128) holds that a previous sanction does not justify passivity in the workplace.
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Non-payment of part of the salary: The STCT of 5 July 1983 (R. 6427) establishes that non-payment cannot reduce the employee's productive output.
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Payment of a productivity bonus during the period of underperformance: According to the STCT of 17 June 1983 (R. 5768), the payment of such a bonus does not automatically imply that performance was at a normal level.
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The company's rejection of claims for salary improvements: The STCT of 25 March 1965 indicates that such rejection does not justify underperformance.
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Tolerance on the part of the company: The STCT of 2 October 1973 (R. 3577) establishes that the company's tolerance does not authorise the employee to reduce their productivity.
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Being subject to provisional enforcement of a ruling: The STJ of Madrid of 18 October 1989 indicates that this procedural situation does not justify underperformance.
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Using underperformance as leverage to obtain salary improvements: The STS of 29 March 1977 notes that legal procedures exist for requesting salary improvements, and underperformance as a form of pressure is not justified.
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Being a trade union representative: The STS of 17 February 1964 establishes that trade union representatives are required to maintain an adequate level of productivity by virtue of their guarantee role within the company.
By contrast, courts have considered that underperformance may not constitute grounds for disciplinary dismissal in the following cases:
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Where the work assigned is not the employee's usual role: The STCT of 12 March 1983 (R. 2017) states that where the work is not habitual for the employee, the requisite level of skill and expertise cannot reasonably be expected.
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Illness or medical condition of the employee: The Supreme Court ruling of 27 February 1987 (R. 1133) establishes that where the employee suffers from an illness that prevents them from carrying out their normal duties, underperformance cannot be used as justification for dismissal.
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First-degree silicosis: The Central Labour Court ruling of 30 December 1964 (R. 1636) indicates that where the employee has been diagnosed with first-degree silicosis, underperformance does not constitute grounds for dismissal.
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Deficient workplace facilities: The Central Labour Court ruling of 31 January 1974 (R. 454) states that where workplace facilities are substandard and negatively affect the employee's output, underperformance does not justify dismissal.
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The company fails to provide travel expenses: The Central Labour Court ruling of 27 March 1977 (R. 3006) establishes that where the company does not provide the employee with funds to cover travel costs, this cannot be held to reduce the employee's productive capacity.
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Assembly line work: The Central Labour Court ruling of 27 November 1974 (R. 5037) states that where the inactivity of one operative on an assembly line affects the work of the next, underperformance cannot be used as grounds for dismissal.
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The company fails to provide performance monitoring records: The Central Labour Court ruling of 20 April 1964 (R. 4224) establishes that where the company does not provide the tools necessary to measure performance, underperformance cannot constitute grounds for dismissal.
