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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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Reform of the Statute of Workers. Information and consultation of employees. Protection of employees in the event of employer’s insolvency
Law 38/2007, of 16 November, adapts Spanish Law to Directives 2002/74/EC and 2002/14/EC of 23 September 2002 and March 11, 2002 of the European Parliament and of the Council. The law amends articles 33, 64 and 65 of the Statute of Workers establishing a general framework for the information rights of employee representatives and defines the notions of information and consultation. (More information)
Use of IT equipment by employees. Company supervision
In its judgment of 26 September, 2007, the Labour Chamber of the Spanish Supreme Court unified case law on the supervision of the use of computers provided by the company to its employees. The Spanish Supreme Court stated that company supervision of the use of IT equipment is not regulated by article 18 of the Statute of Workers but rather by article 20.3. The judgment exhorts employers to provide employees with specific rules and to inform them of the measures to be taken in order to supervise the use of IT equipment. (More information)
Occupational accidents. Calculation of compensation
The judgment of the Labour Chamber of the Spanish Supreme Court of 17 July 2007 unified case law in its analysis of the compatibility and the scope of social security benefits and the compensation for damages linked to an occupational accident where a company’s liability is implicated. (More information)
Temporary employment contract for the performance of a specific work or service subject to the term of the company’s service agreement. Unfair dismissal
This judgment unified case law in a claim filed by an employee based on dismissal resulting from the early termination of a telemarketing service agreement. In its judgment of 14 June 2007, the Labour Chamber of the Spanish Supreme Court declared the dismissal unfair because the decision to extinguish the company’s service agreement was made unilaterally rather by means of a decision adopted by both companies, the principal and the contractor. (More information)
Hardship supplement. Calculation based on days actually worked
In its judgment of 31 October 2007, the High Court of Extremadura, analysed the supplementary application of the general collective bargaining agreement of the construction sector. The collective bargaining agreement for the Province of Cáceres applicable to the company did not include any provisions for calculating the hardship supplement. As such, the High Court considered the supplementary application of the general collective bargaining of the construction sector which regulates that the hardship supplement and established that only days actually worked accrue for the purposes of the supplement. (More information)
Employer’s disciplinary action. Accrual of infringements in the prevention of occupational hazards
In exercising its disciplinary powers, the company reprimanded an employee in multiple communications for continuous infringement of the prevention of occupational hazards. The judgment of the Labour Chamber of the High Court of Justice of the País Vasco, of 10 July 2007 held that the accumulation of infringements in the prevention of occupational hazards by the employee entitled the company to dismiss the employee. (More information)
Father’s entitlement to lactation leave
The judgment of Labour Court number 2 of Valladolid dated 14 November 2007 declared that, unless the mother is on lactation leave simultaneously, the right to lactation leave is held indistinctly by both parents. The judgment identified the purpose of the applicable law as encouraging men to be involved in family life. (More information)
Inappropriate use of company’s mobile telephone. Disciplinary dismissal
In its judgment of 7 November 2007, the Labour Court number 4 of San Sebastian analysed the dismissal of an employee for repeated use of the company’s mobile telephone to harass a person that had no relationship whatsoever with the company. The dismissal was ruled fair. (More information)
Disciplinary dismissal. Evidence: recording on a mobile telephone. Fair dismissal
The judgment of the Labour Court number 2 of Tarragona, of 28 September 2007 admitted a recorded mobile telephone conversation as evidence. The conversations in question took place between the employee subsequently dismissed and the human resources officer. In the telephone conversation, the employee threatened to disclose damaging photographs that could jeopardise the company’s relationship with its main client. (More information)
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Reform of the Statute of Workers. Information and consultation of employees. Protection of employees in the event of employer’s insolvency
Law 38/2007 of 16 November amends the Statue of Workers on the issues of information and consultation of employees as well as their protection in the event of employer’s insolvency. Spanish Official Gazette of 17 November 2007.
Law 38/2007 (the “Law”) amends article 33 of the Statute of Workers (“SW”) regarding the protection of the Salary Guarantee Fund (“SGF”) in insolvency proceedings involving companies with business activities in two or more EU Member States, of which at least one must be Spain.
Article 33 is amended as a consequence of the transposition of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002. The transposition of the European Directive introduces the necessary amendments for the protection of employees in the event of the insolvency of an employer with work centres in various Member States. The SGF is now extended to cover this situation and the competent body with the necessary mechanisms of collaboration and cooperation between Member States to effectively protect employees is determined.
The protective mechanism will only affect collective proceedings regulated by Law 22/2003 of 9 June.
The Law also amends articles 64 and 65 of the SW regarding information, consultation and competencies of the Workers Committee. The amendment adapts the SW to Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for the information rights of employee representatives. The amendment defines the notions of information and consultation and re-addresses some issues on those subjects.
In addition, the SW now refers to collective bargaining for the definition of the different types of information and consultation as developing the legal provision, rather than as an exception. Finally, the duty of secrecy of employee representatives is incorporated into the SW in a much more precise manner, including regulations on administrative or judicial appeals for breach of this duty.
Use of IT equipment by employees. Company supervision
Judgment of the Labour Chamber of the Spanish Supreme Court of 26 September 2007
The Labour Chamber of the Spanish Supreme Court (“SC”) held that computers, as business tools provided to employees in order to carry out their duties, are the property of the company providing them. Therefore, the use of these tools is subject to company supervision.
The decision stated that, with regard to supervision and surveillance, the employer must respect the dignity of employees and also recalled the general acceptance of the reasonable and proportional private use of IT equipment.
Therefore, in order to avoid potential disputes between employers and employees, the SC exhorts employers, in accordance with the contractual obligation of good faith, to provide employees with specific rules and to inform them of the measures to be taken in order to control the use of IT equipment.
Furthermore, the SC has unified the case law of lower tribunals by expressly stating that the supervision the use of IT equipment is not regulated under article 18 of the SW since this article addresses inspections (e.g., of an employee’s locker) and therefore, is not comparable to supervision of the use of IT equipment.
Occupational accidents. Calculation of compensation
Judgment of the Labour Chamber of the Spanish Supreme Court of 17 July 2007
There are two hypothetical approaches for the calculation of occupational accident compensation: (i) the supplementary or absolute accumulation technique: the social security and civil liability action contributions protect the injured employee as self-governing systems; and (ii) the complementariness or relative accumulation technique: both measures have the same purpose and cannot be applied in a totally independent manner.
According to this decision, the benefits set out for permanent disability and analysed by the SC do not suffice as compensation for damages linked to an occupational accident. For this reason, the SC held that in order for damages to be effectively redressed, the severance compensation established in Royal Decree 8/2004 governing compensation for physical after-effects as a consequence of traffic accidents should be paid in addition to social security benefits. However, according to the SC this cannot give rise to twofold compensation for loss of profits.
Furthermore, the SW establishes that the calculation of these indemnities cannot lead to a reduction of any other compensation owed to the employee for whatever reason, particularly, compensation for moral damages to which the employee may be entitled.
Temporary employment contract for the performance of a specific work or service subject to the term of the company’s service agreement. Unfair dismissal
Judgment of the Labour Chamber of the Spanish Supreme Court of 14 June 2007
The judgment of the High Court of Justice of Andalucía declared that the early termination of a telemarketing service agreement executed between two companies could be considered fair cause for the termination of an employee rendering services by virtue of the mentioned service agreement.
However, the SC considered that this judgment entitled the employer to unilaterally determine the term of the employment agreement, which is contrary to article 1,256 of the Civil Code that establishes that the fulfilment of contractual obligations cannot be left to the discretion of one of the parties.
In this regard, the SC held that the termination was an unfair dismissal. This judgment unifies case law by declaring that the term of a temporary employment agreement for the performance of a specific work or service is conditional upon the terms established in the service agreement and not by the unilateral decision of either the principal company or the contractor.
Hardship supplement. Calculation based on days actually worked.
Judgment of the Labour Chamber of the High Court of Extremadura of 31 October 2007.
In the claim brought by a group of employees demanding payment of the hardship supplement, the Labour Chamber of the High Court of Extremadura (“HCEX”) analysed of the supplementary application of the general collective bargaining agreement of the construction sector.
Since the applicable collective bargaining agreement for the Province of Cáceres does not regulate the terms for the calculation of the hardship supplement, the HCEX was forced to analyse the general collective bargaining agreement, which is of supplementary application.
The HCEX noted that the former Central Labour Court held that the payment of the hardship supplement depended exclusively on the exercise of the professional activity. As this supplement implies compensation for the performance of work under conditions that are harmful for the health of the employee, only those days actually worked under these conditions accrue for the purposes of the supplement. On this basis, the HCEX rejected the employees’ claim.
Employer’s disciplinary action. Accrual of infringements in the prevention of occupational hazards
Judgment of the Labour Chamber of the High Court of Justice of the Basque region of 10 July 2007
The Labour Chamber of the High Court of Justice of the Basque Country analysed the disciplinary dismissal of an employee of a company in the construction sector. The cause alleged by the company for the dismissal was the employee’s continuous and repeated infringement of the prevention of occupational hazards. The company sent various notifications to the employee requesting that the individual comply with the safety and security regulations applicable to the work centres. In the notifications, the company included warnings about the exercise of the employer’s disciplinary power and informed the employee that failure to comply with safety and security measures would imply the imposition of more severe disciplinary measures.
The judgment of the Labour Court declared the dismissal unfair in accordance with article 82.17 of the applicable collective bargaining agreement. Article 82.17 of that agreement states that “if, within a six month period a serious infringement that has been sanctioned in writing is repeatedly committed, it will be considered a more serious infringement, thus leading to disciplinary dismissals.”
The Labour Court had held that the repeated warnings could not be considered serious breaches of labour duties since the company could have sanctioned the employee by taking more serious actions.
On appeal, the High Court nevertheless held that an employer is entitled to dismiss an employee when previous measures were ineffective to correct the behaviour of an employee.
The High Court analysed the potential consequences for the company of an occupational accident caused by lack of safety and security measures. The judgment took into consideration the nature of the construction sector in which occupational accidents are relatively common, and rejected the judgment of the Labour Court, declaring the dismissal lawful.
Father’s entitlement to lactation leave
Judgment of Labour Court number 2 of Valladolid of 14 November 2007
The Labour Court declared that, unless the mother is on lactation leave simultaneously, lactation leave is a right held indistinctly by both parents in accordance with article 37.4 of the SW. The judge’s decision was based on the purpose of article 37.4 of the SW that was set out in the preamble to Law 39/1999 regarding the conciliation between professional and private life (“family-friendly employment regulation”).
The judgment also acknowledged the importance of encouraging the involvement of men in family life and stated that the measure is not reserved exclusively for women.
Inappropriate use of company’s mobile telephone. Disciplinary dismissal
Judgment of the Labour Court number 4 of San Sebastian of 7 November 2007
In this case, the claimant made several telephone calls during work hours using the company’s mobile telephone. The calls, which had a sexual content, were made to a third person that had no relationship whatsoever with the company.
The judgment concluded that the employee’s behaviour constituted fair cause for disciplinary dismissal since the calls were made during work hours with a tool belonging to the company and the phone calls were several in number. For this reason, the judge held that the disciplinary dismissal was lawful on the basis of the breach of the contractual duty of good faith.
Disciplinary dismissal. Evidence: recording on a mobile telephone. Fair dismissal
Judgment of Labour Court number 2 of Tarragona of 28 September 2007
The claimant employee was aware of the fact that the company wanted to dismiss him for disciplinary reasons. Therefore, the employee made a telephone call to the individual in charge of the human resources department of the company. In this telephone conversation, the employee threatened to disclose certain damaging photographs that could jeopardise the company’s business relationship with its main client.
The conversation was recorded by the human resources officer and subsequently, the mobile telephone and SIM card were deposited before a notary public. The most significant aspects of the conversation were drawn up in a report by a qualified expert and on this basis, the labour court admitted the evidence.
According to the judgment, the dismissal was lawful since the contractual duty of good faith was breached. Furthermore, the judge considered that the individual had not just attempted to benefit from the situation but had also used his job to attain his objectives unlawfully.
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The information contained in this Newsletter is of a general nature and does not constitute legal advice