Derechos de la persona del trabajador y libertad de empresa en la era de la ponderación entre derechos constitucionales

Abstract

In recent decades, the principle of proportionality has emerged as the criterion for settling conflicts between individuals arising from the exercise of their fundamental rights. However, this rise of the principle of proportionality has not been accompanied by a clarification of how it should apply to these relationships, and even less so to a relationship with such a singular texture as the employment relationship. Under these conditions, this article aims to provide elements of reason that contribute to making possible a foreseeable, structured application of the principle of proportionality in the field of employment relationships, with a reasonable level of legal certainty. To this end, it starts with a scientific thinking about its rational, structure, and content, in order to review how this singular argumentative exercise has to be carried out, based on the weighting of the importance that, from a constitutional point of view, must be given to each of the interests in conflict when we face conflicts between the freedom of enterprise and the fundamental rights of the individual worker. The result is an application of these rights that, avoiding both their indiscriminate application and their habitual sacrifice in the hands of business interests, is within the margins possible for their effectiveness in complex democratic societies, marked by the coexistence of contradictory principles, interests, and values in permanent tension, such as ours.