Four and a half decades in the labour courts: ECIJA's expert view of employment law
This jurist is celebrating his forty-fifth year of practice as one of the mainstays of the ECIJA law firm.
This is indicated on his lawyer's card, which he proudly keeps. On 27 January 1981, a young Fernando Vizcaino and his then girlfriend, now his wife, were admitted to the ICAM in Madrid. His flirtations with comics and cartoons, some of which were published in the national press, were left behind, an activity that he combined after studying law and a job in banking. His first contact with the legal world was in an agency where he set up the legal department. Later, he landed in the office of his father Fernando Vizcaino Casas, a labour lawyer and writer of reference in those years.
His father's advice encouraged him to dedicate himself to labour relations. That first lawsuit in court defending a bakery was the beginning of an extensive and solvent professional career. This 23 February will be the 100th anniversary of his birth. From him I have inherited everything good and bad as a professional. In that generation there were also great lawyers such as Manuel Alonso Olea. So many years wearing the toga is a milestone of which I am proud," he says.
Fernando Vizcaino de Sasse has become one of the most respected lawyers in the profession during his first forty-five years of practice. He worked with his famous father for thirty years and then set up his friend Pablo's Jiménez de Parga Abogados labour law practice. In June 2019 the boutique was integrated into ECIJA, which has turned the firm led by Hugo Ecija and Alejandro Touriño into one of the top five firms in the national legal profession. "I know of few satisfactions like when you see that you have won that lawsuit you prepared so carefully", he confesses to this journalist.
"We are a great team made up of thirty lawyers in Spain and Portugal and four partners who divide up the practice as directors Raúl Rojas, who manages the labour compliance, equality plans and complaint channel and; Alvaro Rodriguez de la Calle, as a labour inspector on leave of absence, manages the labour inspection, social security and advice for companies. Carlos Martínez is in charge of coordinating the firm's international labour practice while I am in charge of the litigation side of the business. This means that our teams are coordinated on an ongoing basis," he says.
And that's where our interviewee is still at the helm. We have this conversation at the Madrid headquarters of ECIJA, which is interrupted by the telephone on several occasions. Fernando is a real procedural strategist and explains that the preparation of the lawsuit must be done in advance "I have a reputation for being a tough negotiator, but nowadays, although there is less conciliation in the courts, it is always advisable to reach an agreement. In many of the dismissals I handle in court, the aim is to reach a figure that suits both the company and the employee. The courts are overcrowded. There is a lack of judges and resources and it doesn't seem logical to spend years with an open lawsuit".
From his point of view in these four long decades of professional practice, this born litigator explains the changes he has detected in the complex world of labour relations "the judicial procedure has changed a lot. It has little to do with the one I knew when I started out. It is a much more automated procedure, where AI and databases are important because Justice is also being affected by these technological changes that we are seeing worldwide. The labour procedure has lost the liveliness of those years. You had everything at stake on the day of the trial and your skills as a labour lawyer were put to the test. That has been somewhat lost because now you have to present the evidence about ten days in advance in a digital file that is now set up. At the same time, there has been a loss of speed in the procedure".
Social Jurisdiction collapsed
Vizcaíno confesses that "historically, we were envied because labour practice resolved matters fairly quickly. After a dismissal in a year at most you had finished your proceedings and had your sentence. Now the situation has slowed down a lot. In Madrid alone it takes a year to summon you to court, in Seville it can take between two and three years. The outlook is discouraging. The social courts are now courts of first instance. Within these former courts, specialisations have been made; there are courts that only hear dismissals, other lawsuits with the Social Security and courts that hear so-called ordinary proceedings. This reorganisation has provoked criticism from many colleagues and has slowed down the activity of these cases".
Another issue that does not go unnoticed by this professional is the almost total judicialisation of disputes between company and worker "It is true, that is so. Now there are fewer conciliations than a few years ago and fewer agreements in court. It has decreased significantly. At the same time, all procedures have become legally more complicated. Most of them involve allegations of violation of fundamental rights. When I talk about this with the dean of the social courts in Madrid, Fatima Beardo, she notes that a percentage of the claims are based on this violation. I think that this is being abused and the judges are now detecting it".
From her point of view, she believes that this situation is circumstantial and that it has to do with the current legislative policy of this government, "there is an unjustified hyper-protection of the worker. We are seeing that this Executive is relying less and less on social dialogue and employers to impose issues such as the Minimum Interprofessional Wage, as has happened now, only with the support of the trade unions. This context generates worrying legislation and case law. The Supreme Court has just clarified that severance pay is appropriate and that until the law is changed, judges cannot deal with it. However, this has led to 80% of these dismissal lawsuits asking for more compensation".
For Fernando Vizcaino, these matters and others related to dismissal while the worker is on medical leave, have sometimes been used by the worker in a misleading way, until another ruling by the Social Chamber of the Supreme Court, following a ruling by Pablo Aramendi in the 33rd Social Court of Madrid, has clarified the terms. "Both cases are complex claims that complicate conciliation before going to court with the other party. If you earn 65,000 euros a year, you can't ask for more than a million euros for alleged harassment at work. That complicates any negotiation.
Judges always on the alert
Throughout his professional career, our interviewee has always stood up for the judges of the social jurisdiction. They continue to be a rising value and at a time of poor legislative quality, such as the one we are currently experiencing, they help with their rulings to clarify indeterminate legislative concepts "the new generation of judges who have arrived after the retirement or departure of the current magistrates to the Supreme Court is very well prepared. They come with much more enthusiasm, they attend to all proceedings very well because technically they manage the cases well. The judicial career has improved quite a lot at a time like the one I have told you about, with the complexity of the demands".
In his opinion, based on a more than notable experience in the social courts, he recognises that "trials can be won if they are well prepared. But you have to prepare from the beginning, including the letter of dismissal. Once the lawsuit is filed, you have to act logically. If it is a defensible lawsuit, it can be settled in logical terms. I have a reputation for not being very conciliatory, it is not easy to get money out of me, especially in cases where I represent Ibex companies or multinationals. In recent years, I have taken on highly complex cases, which reduces the possibilities of conciliation".
From his point of view, "to win a trial you have to be right; prove it, that's where the preparation I mentioned before comes in and you get it. In the event that there is no reason to be, it is good to conciliate so that this shipwreck is as painless as possible. It is necessary to dedicate time to study, desire and little IA because a lost issue can theoretically be raised if it is well prepared. The lawyer in a jurisdiction as direct and personalised as this one is still very important in the outcome of the lawsuit. In my professional career I have defended companies and above all senior executives. In addition to dismissals, many cases concerning work-life balance, leave and working time adjustments often end up in court.
We have bad laws
Along with this casuistry, Vizcaíno warns that "there is also a lot of collective conflict, of interpretation of rules and application of agreements. Along with this, we also receive cases related to rulings from the ECJ. We now have bad laws, sometimes badly drafted. They are difficult to understand. In the first period of Pedro Sánchez's mandate, something exceptional such as the use of Royal Decree Laws, justifiable with the pandemic or the Philomena, they made so many that in labour matters alone there were 40 RDleyes in one year, something that has impoverished our legislation. If we had better laws, litigation would be less complicated.
Although workplace harassment is a threat to companies with the consequent loss of reputation that can result from it being leaked, and the subsequent economic damage of such compensation, Fernando Vizcaino confesses that "the main concern for companies is all the labour obligations they have to take on. It's a madness that goes from the equality plan to having LGTBI measures, and even having a complaints channel or teleworking measures, although now it is something sporadic. There has been an increase in negotiation measures for the adaptation of working hours or any kind of leave, among other issues. This new labour framework generates concern and legal disputes in companies".
With regard to being a good litigator, this litigation expert offers us a couple of ideas "in a negotiation or in a court of law, you must have a poker face and know how to present your strategy, as if you really believe it. In this context, on many occasions I would like to know what the opposing party's figure is in order to resolve the matter and avoid a trial. Labour lawyers are obliged to reach an agreement. This pact has been extended with the Procedural Efficiency Law to other jurisdictions. Now in civil law it is compulsory to try to do so. Now in the labour jurisdiction it is less agreed, but it is agreed. Regarding the use of AI, I don't think it can replace lawyers. I think we will see different mergers of law firms in the national market. It is already happening in Europe.
In the next five years he also believes that the working practices of many of these firms will change: "There will also be integrations and some historic firms will disappear. Many of the boutique law firms will have to grow and look for allies to grow. Right now it is unthinkable for any leading law firm in the legal sector not to have an established labour practice. At ECIJA it is one of the four most important practices. The arrival of investment funds already present in Sagardoy, Auren and Grant Thornton, a phenomenon that our firm was the first to have, will continue to grow in other firms. The legal sector in our country is facing a revolution in the coming years".
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