May 2008
LABOUR LAW GENERAL
1. Freedom of speech. Null Dismissal
The judgment of the Constitutional Court dated 14 April 2008 upholds
the appeal of an employee who was dismissed by a company for issuing a
communication criticising the company. The Constitutional Court argued
that this communication was protected by the fundamental right to
freedom of speech and, therefore, the dismissal must be declared null
and void. (More information)
2. Harassment. Mandatory joinder
The decision of the Labour Chamber of the Supreme Court dated 30
January 2008 establishes that the employee who suffered harassment must
direct the claim against both the employer and the harasser.
(More information)
3. Contracting and subcontracting companies. Joint and several
liability
The judgment of the Labour Chamber of the Supreme Court dated 22
January 2008 declares that a medical assistance public service which had
outsourced part of its own activities by contracting out the medical
transportation services to a private company, is jointly and severally
liable for the salaries of the employees of the private company.
(More information)
4. Interruption of the accrual of salary during dismissal
proceedings
The decision of the Labour Chamber of the Supreme Court dated 22
January 2008 establishes that if the severance payment for the dismissal
of one employee was included in the final settlement agreement (already
paid), it will interrupt the accrual of salary during dismissal
proceedings. (More information)
5. Unfair dismissal or collective dismissal
The decision of the Labour Chamber of the Supreme Court dated 22
January 2007 holds that despite the fact that certain employees of the
same company were dismissed simultaneously, this did not constitute a
collective dismissal given that the dismissals were not based on
organisational, technical, production or economic reasons.
(More information)
6. Contesting a collective bargaining agreement. Salary
discrimination
The decision of the Labour Chamber of the Supreme Court dated 21
December 2007 declares null a clause of a collective bargaining
agreement for establishing different salary conditions based on the date
of the employee’s incorporation to the company. (More
information)
7. Transfer of undertakings. Part of a business
The decision of the Labour Chamber of the Supreme Court dated 12
December 2007 holds that the transfer of the catering service of a
company implies a transfer of an undertaking according to article 44 of
the Statute of Workers. (More information)
8. Geographical relocation. The right to appeal
The decision of the Labour Chamber of the Supreme Court dated 18
December 2008 acknowledges the right to appeal a decision of the first
instance court on the matter of geographical relocation. The decision
establishes that this right to appeal arises if the company does not
comply with the obligation to consult the employee representatives.
(More information)
9. Declaration of a dismissal as unfair but not void. Temporary
disability of employees
The judgment of the Labour Chamber of the Supreme Court dated 11
December 2007 holds that the dismissal of an employee while suffering
from temporary disability was unfair but not void in consideration of
the fact that there was no violation of the employee’s right to non-discrimination
for health reasons. This decision confirms the criteria established in
the judgment of the Labour Chamber of the Supreme Court dated 22
November 2007. (More information)
10. Cancellation of a loan granted to an employee as a
consequence of dismissal
The judgment of the Labour Chamber of the Supreme Court dated 4
December 2007 states that if a clause signed by the company and an
employee establishes that the cancellation of a loan granted to the
employee is due to unfair dismissal, it should not be valid as a result
of the abusive conduct of the employer. (More information)
11. Abusive trial period. Unfair dismissal
The decision of the Labour Chamber of the Supreme Court dated 12
November 2007 declares that the dismissal of an employee during a trial
period of two years is unfair on the grounds of the extensive trial
period in view of the job position. (More information)
12. Maternity subsidy based on adoption
The judgment of the High Court of Justice of the Basque Region dated
27 November 2007 analyses whether or not an employee is entitled to
receive maternity benefits based on the adoption of her spouse’s son.
(More information)
13. Reduction of working hours for legal guardianship
The judgment of Labour Court number 1 of Barcelona dated 28 February
2007 acknowledges the right of an employee to fix the timetable for the
reduction of working hours for legal guardianship beyond the general
shift work schedule established in the company. (More
information)
1. Freedom of speech. Null
Dismissal
Judgment of the Constitutional Court no. 56/2008 dated 14 April
2008
The Constitutional Court upheld the appeal of an employee who was
dismissed by a company basing the judgment on its determination that
there had been an infringement of the fundamental right to freedom of
speech.
The company dismissed the employee for distributing a communication
within the company that criticised the behaviour of the company
regarding an accident resulting in several employee fatalities.
The court stated that the damage caused by the communication was
mitigated by that fact that it was solely distributed within the
company’s workplace.
The court declared the dismissal null as a consequence of an
infringement of the employee’s fundamental right to freedom of speech.
2. Harassment. Mandatory
joinder
Judgment of the Labour Chamber of the Supreme Court dated 30
January 2008
The Labour Chamber of the Supreme Court analysed whether or not the
employer and the harasser must be joined in a claimant’s action for
infringement of fundamental rights due to harassment.
Mandatory joinder is a procedural rule that consists in the
compulsory inclusion of a party in a lawsuit on the basis of the
consequences that the resolution of the judicial process would imply for
a non-joined party.
In this case, the employee suffered harassment from her boss. The
employee filed a claim solely against the company and not her boss who
had carried out the harassment.
The Supreme Court considered that in accordance with mandatory
joinder, employees who have suffered harassment must file a claim not
only against the employer but also against the harasser.
Therefore, the Supreme Court rejected the claim on the basis that the
claimant only filed such claim against the company and not the harasser.
3. Contracting and
subcontracting companies. Joint and several liability
Judgment of the Labour Chamber of the Supreme Court dated 23
January 2008
The Supreme Court analysed whether or not the medical transportation
services carried out by a private company could be deemed as an “own
activity” (propia actividad) for the application of article 42 of
the Statute of Workers.
According to the decision, the medical transportation services are
considered a supplementary and necessary activity in order to provide
public medical assistance.
The Supreme Court declared that the activity carried out by a private
medical transportation company could be considered as an own public
business activity within the legal framework of contracting and
subcontracting companies.
The Supreme Court therefore recognised the joint and several
liability of the public health service for the salary claimed by the
employee of the private company.
4. Interruption of the
accrual of salary during dismissal proceedings
Judgment of the Labour Chamber of the Supreme Court dated 22
January 2008
The decision examined whether or not the severance payment for unfair
dismissal included in a final settlement agreement must interrupt the
accrual of salary during dismissal proceedings.
The High Court of Justice of the Basque Region maintained that the
interruption of the accrual of salary during dismissal proceedings only
occurs when a company has deposited the severance payment for unfair
dismissal in the labour court account pursuant to article 56.2 of the
Statute of Workers.
Nevertheless, the Supreme Court ruled in favour of the company
because the company recognised the unfairness of the dismissal and paid
the employee the severance payment included in the final settlement
agreement.
5. Unfair dismissal or
collective dismissal
Judgment of the Labour Chamber of the Supreme Court dated 22
January 2008
The Labour Chamber of the Supreme Court analysed whether or not
various dismissals taking place simultaneously and which were not based
on economic, technical, organisational or production reasons may be
considered collective dismissals.
In this case, one of the dismissed employees argued that if the
number of terminated employment relationships exceeds the limits
established in article 51.1 of the Statute of Workers, the company must
comply with the procedural rules governing collective dismissals and not
with those governing individual dismissals.
Therefore, the employee considered that his dismissal should be
considered null and void because the company failed to comply with the
procedural rules on collective dismissals.
However, the Supreme Court reasoned that the dismissal was individual
and not collective taking into account that the dismissal by the company
was not based on economic, technical, organisational or production
reasons. The Supreme Court rejected the claim of the employee
considering the dismissal unfair and not void.
6. Contesting a collective
bargaining agreement. Salary discrimination
Judgment of the Labour Chamber of the Supreme Court dated 21
December 2007
This decision declared invalid a clause in a collective bargaining
agreement that established a seniority salary supplement for employees
hired before 1 October 1994.
The National Court (“Audiencia Nacional”) rejected the claim made by
the employee representatives because the clause was not discriminatory.
The Supreme Court reversed the decision and upheld the appeal filed
by the employee representatives. The court held that the clause was
discriminatory as it established different salary conditions based on
the date on which the employee had joined the company and further
considered the clause unreasonable.
7. Transfer of undertaking.
Part of a business
Judgment of the Labour Chamber of the Supreme Court dated 12
December 2007
The Supreme Court declared that pursuant to article 44 of the Statute
of Workers, the service transferred as a part of a business to another
company implied a transfer of undertaking. The consent of the
transferred employees was therefore unnecessary.
In this case, the main business activity of the transferred company
was the provision of assistance to disabled people. The transferred part
of the business was a catering service.
The employee representatives filed a collective action to declare the
transfer of the catering services void.
The Supreme Court ruled that the company transferred a business unit
and that the consent of the employees was not necessary in accordance
with the legal provisions governing transfers of undertakings.
8. Geographical relocation.
The right to appeal
Judgment of the Labour Chamber of the Supreme Court dated 18
December 2007
In this case, a group of employees received a notice from the company
informing them of a geographical relocation measure to another workplace
located in a different autonomous region of Spain.
The employees challenged this measure in accordance with article 138
of the Labour Procedure Law.
The decision of the first instance court rejected the claim. The
court of appeal reversed the first instance decision and ruled in favour
of the employees declaring the company’s geographical relocation measure
null.
While recognising the restrictions to appealing decisions of first
instance courts in geographical relocation proceedings, the Supreme
Court acknowledged the right to appeal the first instance decision based
on the fact that the company did not comply with the consultation
measure with the employee representatives and that if the company did
not comply with the legal requirements related to geographical
relocation, the first instance decision could be appealed.
9. Declaration of dismissal
as unfair but not void. Temporary disability of employees
Judgment of the Labour Chamber of the Supreme Court dated 11
December 2007
The Supreme Court analysed whether the dismissal of an employee for a
continual decrease in work productivity that was notified during the
temporary disability of the employee was unfair or void.
The appellate decision declared that the dismissal was invalid, given
that the company’s decision was based on the fact that the employee was
suffering a situation of temporary disability and that this situation
constituted discrimination. The court also took into consideration the
fact that this practice was customary in the company.
The Supreme Court declared that the dismissal was unfair and not void
on the grounds of the negative performance of the work as a consequence
of the temporary disability suffered by the employee.
This judgment reaffirms the criteria established in the previous
decision of the Supreme Court dated 22 November 2007, setting out that
dismissals occurring when the employee is in a situation of temporary
disability qualify as unfair but not null.
10. Cancellation of a loan
granted to an employee as a consequence of a dismissal
Judgment of the Labour Chamber of the Supreme Court dated 4
December 2007
The Supreme Court examined whether or not the cancellation of a loan
granted to an employee as compensation for an unfair dismissal is valid.
In this case, the employee had entered into a loan agreement with the
employer, a bank. A clause in the contract established that the
termination of the employee’s labour relationship with the bank would
imply a cancellation of the loan. The employee was dismissed and the
dismissal was declared unfair.
The Supreme Court held that the cancellation clause was not valid on
the basis of the employer’s abusive conduct of terminating the
employment contract without cause.
11. Abusive trial period.
Unfair dismissal
Judgment of the Labour Chamber of the Supreme Court dated 12
November 2007
The company dismissed an employee during the trial period established
in the collective bargaining agreement.
The Supreme Court considered the dismissal unfair on the basis that
the two year trial period was too long.
The Supreme Court reasoned that the purpose of trial periods is to
provide the necessary time to obtain a situation of reciprocal trust
between employees and the company.
To that end, the Supreme Court declared that the trial period was
exceedingly long for the purposes of determining the professional skills
of an employee employed in a position that was not particularly complex.
Thus, termination during such trial period without a cause must be
declared unfair.
12. Maternity subsidy
based on adoption
Judgment of the Labour Chamber of the High Court of Justice of the
Basque Region dated 27 November 2007
This judgment analysed whether or not an employee was entitled to
receive maternity benefits for the adoption of her spouse’s son.
In this case, the Labour Chamber of the High Court of Justice of the
Basque Region declared that according to article 48 of the Statute of
Workers the employee is entitled to receive the benefit for the act of
childbirth (parto), and not for adoption.
The court stated that if the natural mother was not enjoying the
right to assistance for childbirth, the adopting mother was entitled to
receive the benefit.
13. Reduction of
working hours for legal guardianship
Judgment of Labour Court number 1 of Barcelona dated 28 February
2008
The employee was rendering services in a company with a working week
of 40 hours. The employee requested a reduction of working time for
legal guardianship beyond the general shift work schedule of the company.
The employee filed a claim for a reduction of her working time which
was to be a timetable from Monday to Friday in a special shift work
schedule that differed from the shift work schedule of the company.
The court recognised the right of the employee to fix the timetable
if the company could not evidence the impairment suffered from an
organisational perspective as a consequence of this circumstance.
However, the size of the company implied that the employee was
entitled to fix her timetable to reconcile personal and professional
life. The court therefore ruled in favour of the employee.
