La garantía de indemnidad

Abstract

This thesis analyzes the "guarantee of indemnity," a genuine labor figure tending to avoid reprisals against the worker who lodges complaints against his employer. This has been a "wake-up" call in the field of worker's rights and is a key tool to mitigate the inherent inequalities present therein. This institution would have found difficulty inhabiting any other branch of Law, closely linked as it is to the protective nature that should constituted Labor Law. The guarantee of indemnity in the field of worker's rights was first formulated in an express way in STC 14/1993. Since then, it has developed gradually, reaching dimensions far exceeding the initial schemes over which it was constructed. Despite the elapsed time, not all doubts have been resolved. On the contrary, new doubts surface with relative frequency, fundamentally connected to its limits both subjectively (either from the point of view of the claimant and his relatives, or the repressive subject) and objectively (protected acts, especially with respect to those that distance themselves from the process, strictly considered). There are various factors that hinder the precision of its profiles. First, constitutional jurisprudence, though it may have resolved numerous questions relative to its nature and applications, has not had the opportunity to answer all questions in the field. This is especially due to the numerous procedural difficulties involved in accessing TC. As this final point can be attributed to accessing TS, the lower judicial authorities are those that play an especially important part, generating the majority of the relevant doctrine, frequently upholding contradicting positions. Additionally, the dynamic character of worker's rights can be seen with the continuous appearance of novel conflictive situations, many of which have gone and continue to go unanswered by TC. In addition to the above, a second grouping of problems must be considered: those which concern the regulatory framework. The most notable fact with respect to this is near absence of specific regulatory development regarding the guarantee of indemnity. The legislator has been basically sedentary in this area without any significant intervention and limiting itself to assumptions that have left more doubts than solutions (as is the case with the composition of art. 17 ET). Due to the previously mentioned data, this study of the guarantee of indemnity is fundamentally based on the construction carried out by the judicial doctrine. However, due of the casuistry of the issues they attend to, the courts cannot undertake a complete study of this institution. For this reason, this study analyzes the contributions made by the scientific doctrine on this subject, keeping in mind the irregular evolution of precedents. The combination of both perspectives allows for the analysis of not only theoretical, but practical applications of the studied figure. It is precisely for this reason that this study dedicates special attention to protection and repair mechanisms that exist for different cases of infringement and the guarantee of indemnity. This study intends to go beyond being merely an analytical study of the guarantee of indemnity, but rather it aspires to be critical and creative. In this sense, the study suggests certain regulatory and interpretive changes, relative to both legal technique and the evolution that should persist within the institution in the future in order to ensure its effectiveness.