February 2008
LABOUR LAW
1. Social Security. Special agreement. Increase of the annual maximum
contribution base
Order of the Labour Ministry 482/2008 of 22 February 2008 modifies
article 6.2.1 of the Order of the Labour Ministry 2865/2003 of 13
October on the special agreement with the Social Security. This
modification allows the request for the increase of the annual maximum
contribution base to employees that, having subscribed to a special
agreement with the Social Security, had chosen a contribution base
resulting from the average contribution for general contingencies in the
12 months prior to the termination of the special agreement or the
expiration of the contribution obligation. (More Information)
2. Dismissal. Unlawful dismissal of an employee undergoing in vitro
fertilization
On 26 February 2008, the European Court of Justice heard a case on
the dismissal of an employee at an advanced stage of an in vitro
fertilization process and held that she could not be dismissed if it is
proven that her dismissal is due to the fact that she was undergoing the
same. (More information)
3. Promotion of employees. Temporary contracts and the calculation of
workers’ length of service in a company
The judgment of the Labour Chamber of the Spanish Supreme Court dated
19 December 2007, recognizes employees’ right to promotion, regardless
of whether they are permanent or temporary workers, provided that they
have worked in a company for the appropriate period(s) as set out in the
applicable collective bargaining agreement. (More Information)
4. Canteens in companies. Absence of an obligation for the company
The interpretation of Decree of 8 June 1938 and the developing
regulation, which established the compulsory obligation for the company
to fit out a canteen for employees, must be made in relation to what is
established in article 3 of the Civil Code. Therefore, the Labour
Chamber of the High Court of Justice of Cataluña of 21 December 2007
held that the rules cannot presently be applied because they were
approved during the Spanish Civil War according to the spirit and
circumstances of that time. (More Information)
5. Breach of the right to privacy. Evidence provided by detectives.
Nullity. Unfair dismissal
The judgment of the Labour Chamber of the High Court of Justice of
Madrid dated 27 June 2007, held that a company’s hiring of a detective
for the purposes of monitoring an employee must be proportional if it is
not to breach the employee’s fundamental right to privacy. The dismissal
of the employee was considered unfair as a result of the evidence
gathered by the detectives being deemed null and void. (More Information)
1. Social Security. Special agreement. Increase of the annual
maximum contribution base
Order of the Labour Ministry 482/2008 of 22 February modifying
Order of the Labour Ministry 2865/2003 of 13 October on special
agreements with the Social Security
Article 6.2.1. a) of the Order of Labour Ministry 2865/2003 of 13
October regulating the special agreement in the Social Security (the “Order”)
sets out the possible contribution bases that may be chosen by the
employee through a special agreement with the Social Security. The
modification introduced by Order of Labour Ministry 819/2004 permitted
employees who had chosen this contribution base to request an increase
of the annual maximum contribution base.
The most recent modification extends the right of asking for an
increase in the annual maximum contribution base to employees that had
chosen the other contribution base according to article 6.2.1. of the
Order. The other contribution base is the average contribution base for
general contingencies in the 12 months immediately preceding the
termination or expiration of the contributing obligation.
2. Dismissal. Unlawful dismissal of an employee undergoing in vitro
fertilization
Judgment of European Court of Justice of 26 February 2008
On 26 February 2008, the European Court of Justice (the “ECJ”) issued
its decision on a query from an Austrian Court regarding whether the
prohibition on dismissing pregnant employees established in article 10.1
of Directive 92/85/EEC can be applied to an employee undergoing in vitro
fertilization who is notified of her dismissal once her ovules have been
fertilized but before they have been returned to her uterus.
The ECJ held that the aim of the Directive and in particular the EU
regulations governing equality between men and women within the ambit of
the rights of pregnant women or those who have recently given birth, is
to protect female employees before and after childbirth. Therefore, in
article 10 of the Directive, the EU legislator has provided special
protection for women by prohibiting their dismissal during the period
between the start of pregnancy and the end of maternity leave. The
Directive makes no exception to the prohibition on dismissing pregnant
employees.
From the foregoing, the ECJ infers that article 10 of the Directive
must be interpreted as meaning that to be protected against dismissal,
the woman must be pregnant. In such circumstances, to ensure the safety
and protection of pregnant employees the date that must be taken into
account is the earliest date possible.
However, whilst Directive 92/85/EEC cannot be applied to this
particular case, according to ECJ case law, EU regulations, that the
national court has not made reference to in the preliminary question
raised, can be taken into account. In this regard, Directive 76/207/EEC
would be applicable, which regulates the principle of equality between
men and women with regard to access to employment, training, career
development, and working conditions.
In the case referred to above, the ECJ concluded that an employee who
is at an advanced stage of in vitro fertilization cannot be dismissed,
provided that it can be proved that the dismissal is essentially based
on the fact that the employee has been undergoing such treatment.
3. Promotion of employees. Temporary contracts and the calculation
of workers’ length of service in a company
Judgment of the Labour Chamber of the Spanish Supreme Court dated
19 December 2007
A company lodged an appeal against a judgment upholding a collective
dispute claim which declared that employees whose salary levels meant
that they were due to be promoted on the basis of their experience (according
to the saving banks collective bargaining agreement), were entitled to
have periods in which they worked for the defendant company under
temporary employment contracts to be included in the calculation of the
length of time they had worked for the company, irrespective of the
duration of the breaks between each contract.
The appellant company contended that, as promotion in this case is
awarded on the basis of the employee having worked continuously for the
company, an employee should only be promoted when there has been an
uninterrupted provision of services, less than twenty days of
interruption, or longer interruptions that were due to fraudulent acts.
Therefore, the sum of separate periods during which services have been
provided pursuant to various contracts over a period of time cannot be
considered for promotional purposes.
The Supreme Court analyzed the facts and dismissed the appeal lodged
by the company arguing that it is the applicable collective bargaining
agreement itself that recognizes the right to promote all employees who
have been at the company for a certain period of time, without making
any distinction between permanent and temporary workers. According to
the applicable bargaining agreement, workers can be promoted due to
their experience for simply having provided services for a certain
amount of time, even though interruptions may exist as “a forced
leave of absence and suspension of the employment contract with a
reservation of the post are included within the concept of permanent
provision of services”.
4. Canteens in companies. Absence of an obligation for the company
Judgment of the Labour Chamber of the High Court of Justice of
Cataluña of 21 December 2007
This judgment declared that this issue depends on the interpretation
of Decree of 8 June of 1938 on the establishment of canteens in
companies (the “Decree”) and the developing regulation (the “Order”).
The Decree regulates the compulsory establishment of a canteen by
companies. The Order, in turn, establishes that a company must contract
a cook, supply the cooking fuel, the kitchenware and advance the amounts
necessary to enable the employees to acquire products at a lower
wholesale price.
In this case, a company of 170 employees had fit out an old training
room for use as a canteen with a 30 person capacity. However, the room
did not provide a supply of drinking water or a location in which clean
kitchenware.
The company and employee representatives disagreed on the
interpretation of the Decree and the Order regarding whether the company
was obligated to fit out a canteen room or instead, a canteen service.
The Labour Chamber of Superior Court held that according to article 3
of the Civil Code “rules must be interpreted strictly in relation to the
context, historic and legislative background and the social
circumstances of the time when they were originally implemented, with
particular attention to their spirit and purpose”. The court held that
the Decree and the Order are contrary to principles of the Spanish
Constitution, thus a company cannot be obligated to establish a canteen.
5. Breach of the right to privacy. Evidence provided by detectives.
Nullity. Unfair dismissal
Judgment of the Labour Chamber of the High Court of Justice of
Madrid, dated 27 June 2007
The judgment of the Labour Chamber of the High Court of Justice of
Madrid, (the “HCJM”) of 27 June 2007 declared the evidence obtained for
dismissal proceedings by detectives contracted by the employer to be
null and void. As a result, the company was unable to prove the
allegation of the breach of good faith it asserted in the employee’s
dismissal letter.
In this case, the company’s commercial representative, who worked
from home and made commercial visits, incorporated a company that
competed directly with its employer’s customers. The report issued by
the detectives, who followed the employee for six months, revealed that
the employee would visit the offices of a company of which he was joint
and several director, used the employer’s company car for his own
business, and also charged any expenses incurred in his own business to
his employer.
The HCJM held that the activity carried out outside of a person’s
workplace is private, even if conducted in public spaces, and cannot be
monitored by the company because it is private and falls under his/her
right to privacy. Thus employers do not have the right to know what
employees do in their spare/private time. The judgment added that the
occupations or activities of people conducted in public spaces are still
private, and can be shared with whomever they wish or be protected by
anonymity if they so wish.
The court compared this case to those in which the Constitutional
Court issued a judgment regarding recreation and relaxation areas within
the workplace.
The prevalence of the appellant’s right to privacy can only be
limited by the employer’s powers of control or by a justified business
need or interest, it not being sufficient to simply invoke the right to
limit the employee’s rights. In the case heard by the HCJM, the company
did not include any facts, details or conduct in the dismissal letter
that justified the need to monitor the employee. In fact, it was only
after contracting the detectives’ services, that the company found out
about the employee’s breach.
