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For several years now, there has been a wealth of thought-provoking articles on employment and social affairs, as well as a growing body of case law, on the subject of robotisation and the future of labour law.
Some time ago, the World Economic Forum, in its analysis of the future of work, warned that between 2015 and 2020, the digitalisation of industry could result in the disappearance of 7.1 million jobs while creating 2.1 million new ones.
Along similar lines, as noted in a 2017 article by Professor of Labour Law Jesús R. Mercader Uguina, published in Revista y Derecho No. 27, experts at CaixaBank Research predicted that "43% of current jobs in Spain are at high risk of being automated in the medium term." As the economy slowly recovers, this element of technological unemployment may prove increasingly significant: many of the jobs that have been lost will never return, they will be replaced by more efficient machines.
Against this backdrop, a story recently reported in La Vanguardia revealed that CaixaBank had presented trade unions, in the early hours of the morning, with its final proposal in the Collective Dismissal Procedure (ERE) negotiation meeting. The proposal envisaged 6,452 contract terminations, stemming primarily from the merger with Bankia, with considerable effort from both sides during the negotiation process, including voluntary employee transfers, compensatory improvements, and a reduction in the number of affected staff.
In any event, we should not lose sight of what Professor Mercader said at the time, nor of the remarks reported by La Voz del Sur on 29 June, from Mr Enrique Coiros of the SECB (Sindicato de Empleados de CaixaBank, the CaixaBank Employees' Union), who noted that "we are paying the price for digitalisation when we are sent to the ATM, following our managers' orders. We are victims of the model being imposed on the banking sector."
The COVID-19 pandemic has fast-tracked digitalisation and all its consequences by what feels like decades, plunging us, almost without noticing, into realities we once thought belonged to the distant future: remote working, the right to digital disconnection, and the growing automation of tasks previously done by people. We are now even asking ourselves whether machines should make Social Security contributions in order to sustain the system.
As Nobel Prize-winning economist Wassily Leontief predicted back in 1983: "The role of humans as a factor of production will diminish in the same way that the role of horses in agricultural production declined and ultimately disappeared with the introduction of the tractor."
All well and good, but it raises a question: Can a machine truly replace every job? And can it do so reliably?
On this point, I want to draw your attention to an article from the economic publication Bloomberg, picked up by Corporació Catalana de Mitjans Audiovisuals, S.A. (TV3, Catalunya Ràdio) on 30 June 2021 at 20:42, under the following headline:
"How Amazon Uses Algorithms to Dismiss Workers via Automated Emails"
According to complaints filed by around fifteen self-employed workers, the multinational Amazon has taken things a step further, apparently dismissing workers by means of automated emails generated by algorithms that determined, without human input, who was not performing their job correctly.
As an employment law specialist, it is worth noting that the approach described above carries its own risks, not only in terms of the formal requirements under Spanish law that must be met to ensure the employee is properly informed, and the opportunistic tactics employed by many legal professionals and individuals in this regard, but also, and crucially, with respect to the grounds for dismissal and how those grounds are substantiated.
In the specific case reported by the Bloomberg business magazine, an Arizona delivery driver, Stephen Normandin, aged 63, was dismissed based on the interpretation generated by performance-monitoring systems, without any consideration of factors outside the driver's control. The system automatically generated the email notifying Mr Normandin of the termination of his contract.
Setting aside for now the question of whether we are dealing with an employed or self-employed worker, the stated grounds for dismissal appear generic in nature, based on information and alleged breaches previously entered into the system by IT staff, most likely acting on instructions from legal advisers (or not), and possibly without adequate consideration of the specific circumstances surrounding those alleged breaches or the evidential requirements that would need to be met in employment proceedings, both at first instance and before the higher courts.
On this point, it is worth highlighting the many occasions on which, as legal advisers, we have had to debate with our corporate clients, as employers, the seriousness or otherwise of a particular incident and the potential consequences of the disciplinary action they were considering. The same applies to our individual clients, employees, whose contracts have been terminated on generic or procedurally weak grounds, with all the consequences that follow.
It is worth bearing in mind that, in employment law, particularly at the litigation stage, "if it is not in the letter, it does not exist." This underscores the critical importance of properly documenting contract terminations, including the grounds relied upon, and of mounting an appropriate legal defence or challenge.
Returning to Mr Normandin, who worked in the Flex parcel delivery division: he maintained that the breach of contract the algorithm had used as the basis for terminating his contract related to a failed delivery at an apartment complex with a locked entrance. The algorithm recorded these failed delivery attempts, added them to his file, and within days he received notification of termination.
When he sought to challenge the grounds for his dismissal, Normandin received a highly generic response generated by the same system, with no one to be found "on the other end."
In my view, the consequences of this termination are fairly clear under Spanish law. What remains to be assessed is whether this case intersects with "other algorithms" that may, or may not, have been built into the system in relation to terminations affecting a specific group of individuals, and whether certain rights may, or may not, have been infringed as a result.
In this context, it is important to consider Article 24 of the European Social Charter, which enters into force within the Spanish legal order on 1 July of this year. That provision, which reflects the principles of ILO Convention No. 158, already incorporated into Spanish law through various judicial pronouncements, is directly relevant to the dismissal in question and to the broader debate around dismissal without valid grounds:
- Rulings upholding nullity on grounds of abuse of law (notably, the High Court of Justice (TSJ) of Catalonia of 6 June 2019 and the Labour Court No. 1 of Terrassa of 29 November of the same year)
- Rulings declaring unfair dismissal (notably, the High Court of Justice (TSJ) of Catalonia of 21 June 2020 and Labour Court No. 34 of Madrid, of 21 February and 21 October, both in 2020)
In my view, the algorithm used by the company can be sufficient to justify a legitimate, non-discriminatory ground for dismissal, provided there are no other underlying issues (such as a different algorithm that could be shown to infringe employees' rights).
In any event, automated and generic responses of the kind we are discussing are already part of everyday life, for example, when you file a complaint with a company about a product return and receive an automatic offer to keep the item, which is then repeated when you are unsatisfied and complain again, with perhaps only the compensation amount changing, the response again being entirely automated.
That said, in employment law, everything has its consequences and must be examined on a case-by-case basis, particularly when it comes to dismissals or other employment rights. Each case deserves the same rigour as a appeal for the unification of case law (those of you who have been through that process will know exactly what I mean), and, closer to home, the same careful attention that we at our firm give to every individual matter, whether acting for the employer or the employee, treating each case as a bespoke solution tailored to the specific circumstances.
To close, let us remember what makes us uniquely human: "Computers learn, we understand" (in the words of Henning Beck). Unlike us, computers have no capacity for improvisation, and that will work in our favour, particularly when Kafkaesque situations arise (or when we need to prevent them). Keeping full control of the process matters, because automation can give rise to discrimination and all the consequences that follow.
This is precisely why the termination communication matters so much, and why it is advisable, if not essential, to seek proper guidance from an employment law specialist.
Whatever the situation: lead with empathy, stay adaptable, keep looking for ways to improve, and never forget that imagination knows no limits.
Have a great day.
