March 2008
LABOUR LAW
1. Functional Mobility. Decrease in labour capacity. Change of
remuneration in line with change of position
The judgment of the Spanish Supreme Court, dated 24 January 2008,
rejects the appeal of an employee, who after being classed as having
acquired a disability, obtained a new post in accordance with his
handicap, but requested to keep the same wages corresponding to his
previous position. (More information)
2. Part-time permanent contract versus temporary contract
to perform a specific service. Services not limited in time
The Spanish Supreme Court, states that the music lessons given in a
municipal conservatory during the academic year, did not comply with the
requirements to be deemed a temporary activity. Therefore the employee’s
contract should be considered to be a part-time permanent contract.
(More information)
3. Back pay awarded after dismissal appeal hearings.
Responsibility of the State for all unpaid wages as from the date of
dismissal until notification of the judgment
The judgment of the Spanish Supreme Court, dated 28 November 2007,
examines the temporary scope of the State’s responsibility for the back
pay awarded after dismissal appeal hearings, in the event that a
judgment, declaring a dismissal to be unfair, is issued more than sixty
working days after the date on which the claim was filed.
(More information)
4. Unfair Dismissal. Employment termination based on the
compulsory retirement established in a collective bargaining agreement
The judgment of the High Court of Justice of Madrid, dated 23 April
2007, analyses the appeal lodged against a judgment issued in response
to dismissal proceedings that derived from an employment termination
based on the compulsory retirement of an employee, pursuant to the
applicable collective bargaining agreement. The judgement declared the
dismissal null and void. (More information)
5. Fair disciplinary dismissal. Inappropriate attire worn by the
employee
The judgment of the High Court of Justice of Madrid, dated 5 November
2007, states that certain professional activities require a minimum
level of generally accepted suitable attire. Not to comply with such
minimum level justifies a fair dismissal. (More information)
1.
Functional Mobility. Decrease in labour capacity. Change of remuneration
in line with change of position
Judgment of the Spanish Supreme Court, Labour Chamber, dated 24
January 2008
This case relates to an employee, who after being classed as having
acquired a disability, obtained a new post in accordance with his
handicap, but requested to keep the same wages corresponding to his
previous position under the scope of the applicable collective
bargaining agreement (“CBA”).
The employee requested the analogical application of this case to
article 65 of the abovementioned CBA. However, the court established
that the said article exclusively refers to situations where an employee
has a total and permanent disability, which in turn gives rise to the
fact that he cannot continue carrying out the same post. Therefore the
article establishes that in such cases, upon the request of the employee,
the employer can be given a new more adequate post and that he should
maintain the basic annual salary of his previous post. However, the
court held that the applicable article of the CBA in this case was in
fact article 66 as it regulates the decrease in employees’ capacity
levels as opposed to a direct loss thereof (as referred to in article
65), in which case the employee would not have the right to maintain his
salary conditions.
The Supreme Court therefore concluded in its judgment that an
analogical interpretation of the CBA provisions is not possible because
the CBA establishes different regulations for different situations. As a
result, the employee’s appeal was rejected.
2. Part-time permanent contract versus
temporary contract to perform a specific service. Services not limited
in time
Judgment of the Spanish Supreme Court, Labour Chamber, dated 30
October 2007
The Supreme Court upheld the appeal lodged by the employee and stated
that the music lessons given in a municipal conservatory during the
academic year, did not comply with the requirements to be deemed a
temporary activity. Therefore the employee’s contract should be
considered to be a part-time permanent contract as opposed to the
consecutive temporary contracts to perform a specific service that the
company had instead signed.
The Court highlighted that a temporary employment contract to perform
a specific task or service must comply with an essential requirement in
order to be valid, namely, there must be a temporary need for it. In
this case, the Court held that this requirement had not been fulfilled
because the number of course registrations did not affect the nature or
essence of the activity itself but instead whether or not such service
should be provided.
Moreover, the Supreme Court concluded that the fact that the music
lessons were given for 8 successive years did not at all correspond with
it being deemed a temporary activity.
3. Back pay awarded after dismissal
appeal hearings. Responsibility of the State for all unpaid wages as
from the date of dismissal until notification of the judgment
Judgment of the Spanish Supreme Court, Labour Chamber, dated 28
November 2007
The Supreme Court examined the temporary scope of the State’s
responsibility for the back pay awarded after dismissal appeal hearings
as established in articles 57.1 of the Statute of Workers and 116.1 of
the Labour Procedural Law, in the event that a judgment, declaring a
dismissal to be unfair, is issued more than sixty working days after the
date on which the claim was filed. In particular, whether the back pay
is calculated up until the date that the judgment is issued or instead
up until the date that the parties receive notification of the judgment.
Note that article 56.1 of the Statute of Workers refers to: “...unpaid
wages as from the date of dismissal until the notification of the
judgment declaring the dismissal unfair”, however 116.1 of the
Labour Procedure Law states “...until the court judgment”.
In line with its previous judgments, the Supreme Court stated that
compensation for damages is not limited to the period exceeding sixty
days from the date that a judgment is issued but instead the entire
period referred to in article 56.1 of the Statute of Workers, namely not
only the back pay accrued until the date of the judgment but also the
sum of the unpaid salaries from the date of dismissal until notification
of the judgment. In this case, the judgment was notified by means of a
publication as the whereabouts of the employer was unknown.
4. Unfair
Dismissal. Employment termination based on the compulsory retirement
established in a collective bargaining agreement
Judgment of the High Court of Justice of Madrid, Labour Chamber,
dated 23 April 2007
The High Court of Justice of Madrid analysed the appeal lodged
against a judgment issued in response to dismissal proceedings that
derived from an employment termination. Such termination was based on
the compulsory retirement of an employee pursuant to the applicable CBA.
Thus, the particular CBA provision analysed during the appeal
proceedings was that which stated that the parties shall assume and
agree to apply the retirement criteria in accordance with Law 14/2005.
In this regard, the High Court concluded that the standard clauses
relating to the ordinary retirement age giving rise to the termination
of a contract can no longer be based only on general employment policies
such as in this case. The High Court also analysed another clause of the
CBA regarding the covering of any position by means of a permanent
contract, within 3 months, by personnel who have the same type of
contract and occupational category. However, this standard clause was
breached in this case.
Moreover, the High Court concluded that the compulsory retirement
imposed by the employer was not for employment policy reasons but
instead for economic reasons.
Thus, the judgement declared that the employee’s contract was
terminated only due to the fact that he had reached ordinary retirement
age, which in itself lacks the necessary legal grounds, as such measure
did not comply with any of the company’s employment policies. Therefore
the dismissal was declared null and void on the grounds of age
discrimination.
5. Fair
disciplinary dismissal. Inappropriate attire worn by the employee
Judgment of the High Court of Justice of Madrid, Labour Chamber,
dated 5 November 2007
This judgment declares that certain professional activities require a
minimum level of generally accepted suitable attire. In this case, the
dismissed employee was a sales agent, a job which is limited as regards
the appropriate dress code.
Moreover, the High Court stated that the employee repeatedly ignored
the recommendations and warnings of the employer relating to this matter,
intentionally acted in an undisciplined manner, which even amounted to
provocation.
The judgment concluded that the disciplinary dismissal was fair
because the employee’s behaviour was in clear breach of the employer’s
legitimate authority (which, in this case, included determining the
appropriate dress code for employees).
