La modalidad procesal de tutela de los derechos fundamentales y libertades públicas en el orden social

Abstract

This study carries out a review of the legal regime of the procedural modality of articles 177 to 184 LRJS for the protection of fundamental rights and public freedoms in the social jurisdictional order; without dwelling on the substantive content of these fundamental rights, not even on the analysis of all the mechanisms for the protection of fundamental rights, but only on the one closest to the litigant. It is intended to respond to the convenience of periodically reviewing legal institutions, in the light of international and Community law and the multiple and frequent internal regulatory reforms, which have generated certain contradictions, largely reversed by jurisprudential interpretations. To this end, documentary and content analysis techniques have been used and an important role has been given to hermeneutical work, as it is an essential tool in the interpretation of normative texts and in the analysis of other documentary sources. From the in-depth study of this procedural modality, a first conclusion can be drawn, which is the significant reduction of its scope, due to the existence of two other channels for the protection of fundamental rights (one mandatory - via reference of art. 184 LRJS to other procedural modalities) and the other voluntary (to obtain the protection of fundamental rights through the ordinary or special common process that corresponds by reason of the matter, given the optional nature that the special modality of protection of arts. 177-184 LRJS is predicated). All this leads to the reservation of the procedural modality in question for the processing of "pure" claims for the protection of fundamental rights and its preference, urgency and limitation of the object have demonstrated their effectiveness in protecting fundamental rights when the situation is exceptional and pressing, as in the recent situation of the Covid-19 pandemic. However, it seems somewhat "forgotten" by the latest legislative reforms (Law 15/2022 on Equality or LO 1/2025 on Efficiency), which have not introduced the appropriate changes in this particular modality, so it is seen as necessary to overcome the anomalies that this has caused. The obligatory reference to other procedural modalities to avoid the divisibility of the causa petendi made by art. 184 LRJS is one of the causes of greatest "flight" from the special modality of tutela. The guarantees of the special modality of protection are extended to all of them, although the characteristic of summary or urgency is the one that most "suffers" the consequences of this accumulation of actions, since in the modalities of dismissal, challenge of sanctions and termination of the employment relationship, procedures such as prior conciliation are not eliminated, which lengthens the duration of the procedure. Finally, its optional nature does not prevent the allegation of the infringement of the fundamental right in the ordinary process or in any other not included in the list of art. 184 LRJS and in which the joinder of actions is not prohibited, but without the guarantees of arts. 177-184 LRJS. From all of the above, it can be concluded that the options of the litigant to obtain protection of fundamental rights in the field of labour legal relations continue to fluctuate between obtaining a swift and therefore limited response or a less agile one, but which covers all the motions related to the harmful action.