Indemnity guarantee

The indemnity guarantee is the right that employees have to take legal actions against the company to claim their rights. The law does not expressly recognize it, but the courts have been shaping it. It is an extension of the right to effective judicial protection (that is, the right that employees have to sue).

In practice, this guarantee translates into the impossibility for the company to retaliate against an employee who has sued or claimed their rights. Therefore, any company action that causes harm to the employee and is motivated by the fact that he has filed a claim (out-of-court or judicial) for the recognition of his rights is considered null.

If there are indications that an employee's indemnity guarantee has been violated, the obligation to prove that the measure taken is unrelated to a previous claim by the employee falls on the company. It is not enough for the affected party to invoke the guarantee: they must provide evidence.

The courts give special importance to the time elapsed between the claim and the dismissal or sanction to assess whether both events are linked or not. There is no fixed or automatic deadline, but even a dismissal two or three months after a judicial or extrajudicial claim could be considered retaliation if the company does not prove otherwise.

Furthermore, since March 2023, there is an obligation for companies to implement an internal information system that allows communicating any type of infringement to the workforce, ensuring the confidentiality of the informants at all times, who cannot incur any liability and are also protected against retaliation by the indemnity guarantee.