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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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Special Agreement with the Social Security
TAS Order 2632/2007 of 7 September (the “Order”) modifies TAS Order 2865/2003 of 13 October, on the Special Agreement with the Social Security. (More information)
Indirect discrimination on grounds of gender. Disproportion in higher professional categories
The Labour Court no. 13 of Barcelona held that a disproportion between men and women in promotion to higher professional categories constitutes indirect discrimination. (More information)
Unlawful transfer of employees. Ex officio proceedings. Lack of standing
The Labour Court no. 4 of Madrid held that the Labour Inspectorate had no right of action to initiate labour proceedings as the defendant company had not filed any allegations in the administrative sanctioning proceedings. Likewise, the court considered that there had been no illegal transfer of employees in the case at hand. (More information)
Right to equality. Fixed-term employees and permanent employees
The European Court of Justice (the “ECJ”) affirmed in its decision of 13 September 2007 by interpreting the purpose of the framework agreement on fixed-term employment as the application of non-discrimination principles to temporary employees. The aim is to prevent abuse arising from the use of successive contracts of this nature by employers seeking to deny these employees the rights (in the case at hand related to salaries) granted to permanent employees, even when such rights are recognised under national law. (More information)
Right of a father to benefit from maternity leave. Compatibility with the mother’s temporary disability
The Labour Chamber of the Supreme Court of Justice of Castilla and León (Burgos) interpreted the right of the father to benefit from maternity leave as being compatible with the situation of a mother’s temporary disability. (More information)
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Special Agreement with the Social Security
Order TAS 2632/2007 of 7 September (the “Order”) modifies Order TAS 2865/2003 of 13 October, on the special agreement (the “Special Agreement”) with the Social Security. Spanish Official Gazette of 14 September
The Order covers the following issues:
(i) It declares there to be no basis for subscribing to the Special Agreement during the periods in which working hours are reduced for child care. In terms of Basic Law 3/2007 of 22 March, which promotes effective equality between women and men, contributions to the Social Security during the first two years of the reduction of the working day will be computed up to 100 percent of the corresponding amount had a complete working day been maintained.
(ii) It establishes the possibility for female workers and civil servants who are victims of gender-based violence to subscribe to the Special Agreement for a reduction in working hours.
(iii) It regulates certain aspects of the special agreements subscribed by non-professional caretakers of people in situations of dependency, whose mandatory inclusion in the Social Security, through the subscription to the Special Agreement, was established by Royal Decree 615/2007 of 11 May.
Indirect discrimination on grounds of gender. Disproportion in higher professional categories
Judgment of Labour Court no. 13 of Barcelona of 30 July 2007
This judicial decision concerns the professional promotion system established within a company. The court determined whether this system could be considered discriminatory on the basis of an irregular distribution of workers among professional categories, particularly due to the inferior number of women in the higher professional positions.
In this case, the Labour Inspectorate officially recorded the breach on the grounds of the commission of indirect discrimination through the company’s promotion system. Subsequently proceedings were initiated ex parte before the labour court.
According to the collective bargaining agreement in place, the defendant company had established a system of free designation for employees seeking promotion.
The company argued that the differentiation between women and men lay in the seniority of men who had rendered their services in higher professional positions for longer periods. It further justified gender differentiation on the grounds of women’s familial responsibilities.
However, the Constitutional Court (CC) considered discrimination not to be limited to direct discrimination. Rather, there may be indirect discrimination where a company applies a formal neutral criterion to employees that places women at a particular disadvantage to men.
According to European Court of Justice (ECJ) case law, statistics and social surveys are appropriate means of proving indirect discrimination.
On the basis of case law, the labour court considered the promotion system established by the company to be discriminatory, as the criteria used in the promotion of employees were subjective and placed women at a particular disadvantage to men in accessing higher positions in the company.
The court thus found the promotion system to constitute indirect discrimination on the grounds of gender.
Unlawful transfer of employees. Ex officio proceedings. Lack of standing
Judgment of Labour Court no. 4 of Madrid of 21 September 2007
This judgment concerned whether: (i) the labour authority was entitled to sue a company, where the latter had not previously filed allegations in the case file; and (ii) an illegal transfer of employees had taken place.
In this case, the unlawful Labour Inspectorate officially recorded the breach on the grounds of an unlawful transfer of employees between the transferor and transferee company. The accusation was only contested in writing by the transferor company and not the transferee company.
Subsequently, the labour authorities suspended the official record on the basis of the appropriateness of initiating proceedings ex officio so as to determine whether there had been an unlawful transfer of employees in terms of article 43 of the Spanish Statute of Workers (“SW”).
Article 149.2 of the Labour Procedure Law states that in order for an authority to be able to initiate ex parte proceedings, the parties must have presented allegations and duly evidenced the jurisdiction of the labour courts.
Therefore, the court held that the Labour Inspectorate did not have standing to sue the transferee Company in the absence of any allegations by the transferee company in the administrative sanction proceedings. This is so without prejudice to the company’s right to take part in the judicial proceedings, in order to guarantee due process.
Moreover, the court stated that the employees affected by the transfer had carried out their duties independently and without instruction from the transferee company. Thus, there had been no unlawful transfer of employees.
Right to equality. Fixed-term employees and permanent employees
Judgment of the European Court of Justice (the “ECJ”), 13 September 2007
This ECJ judgment stems from a preliminary ruling by the Labour Court no. 1 of San Sebastián concerning the interpretation of the Framework Agreement on Fixed-Term Employment (“Framework Agreement”), which is set out in the annex to Council Directive 1999/70/EC of 28 June 1999.
The Framework Agreement is aimed at improving the quality of fixed-term employment, by ensuring respect for the principle of non-discrimination and establishing a framework to prevent abuse arising from the use of successive fixed-term employment contracts.
In this sense clause 4 (1) of the framework agreement provides:
“In respect of employment conditions, fixed-term employees shall not be treated in a less favourable manner than comparable permanent employees solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds”
The Labour Court was uncertain as to whether the applicant was entitled, on the basis of the principle of non-discrimination set out in the Framework Agreement, to benefit from the triennial benefits to which she claimed to be entitled for her fixed-term employment in the Basque Public Health Service (“Osakidetza-Servicio Vasco de Salud”), prior to having been employed as a member of the permanent staff in that same organisation. The court was also unsure as to whether differential treatment (between temporary and permanent staff) provided for in legislation or in collective bargaining agreements, constituted an “objective ground” within the meaning of clause 4(1).
The ECJ declared, in this respect, that the provision set out in Article 137 of the EC Treaty relating to “remuneration” may be explained by the fact that the level at which wages are fixed falls within the contractual freedom of the parties at national level, and within the relevant competence of Member States. Nevertheless, the exception does not prevent a fixed-term employee from requesting, on the basis of the principle of non-discrimination, an employment benefit reserved only for permanent employees. Therefore the Framework Agreement should be interpreted as a possible basis for a claim such as that at issue in the main proceedings, in which a length of service premium reserved under national law for permanent staff is sought by a fixed-term employee.
Finally, the ECJ deems differential treatment to be justified where precise and concrete factors exist which, on the basis of objective and transparent criteria evidence that it responds to a genuine need and is both appropriate and necessary for achieving the pursued objective. Therefore, the mere circumstance that this is set out in a statutory provision or collective bargaining agreement does not constitute “objective grounds”.
Right of a father to benefit from maternity leave. Compatibility with the mother’s temporary disability
Decision of the Labour Chamber of the Supreme Court of Justice of Castilla and León (Burgos), dated 8 March 2007
The Social Security filed an appeal opposing the first instance decision, which stated that it is not possible to take sick leave during the period of maternity leave, even if this benefit is being enjoyed by the father.
The Social Security argued that this would constitute an infringement of article 9.3 of Royal Decree 1251/2001 (“RD 1251/2001”), which establishes that temporary disability (“TD”) benefits arising from common or professional contingencies do not apply during maternity leave.
The Supreme Court of Justice of Castilla y León (Burgos), in reading paragraph two of article 48.4 of the SW with article 9.3 of RD 1251/2001, concluded that it is mandatory for the mother to take maternity leave in the six weeks immediately following childbirth; during the rest of the time, the father will be able to benefit from maternity leave, unless the return of the mother to work constitutes a health risk.
In the case at hand, during the above 6-week period of mandatory rest, the mother did not request any TD allowance. The contingency only started after the end of this period, thus there was no infringement of article 9.3 of RD 1251/2001, and the terms were compatible. Furthermore, the court held that in determining the health risk for the mother, those risks deriving directly from childbirth must be taken into account, disregarding any other illnesses.
Finally, the court stated that a father’s request to enjoy maternity leave instead of the mother does not infringe the provisions nor constitute fraud, even where the request is subsequent to childbirth. Therefore in the case at hand, both the benefit granted to the father and the subsequent disability contingency requested by the mother, were legitimate and compatible.
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The information contained in this Newsletter is of a general nature and does not constitute legal advice