The information contained in this Newsletter is of a general nature and does not constitute legal advice


July 2008

LABOUR LAW

 

1. Applicable law. Rome I Regulation

The recently approved Rome I Regulation provides the parties to employment contracts the freedom to choose the applicable law. The Rome I Regulation stipulates that when no law is chosen, the applicable law is that of the country where the employee performs his/her work, and if this cannot be determined, the national law of the country where the establishment which hired the worker is located. (More information)

2. Dismissal of a pregnant woman. Employer not aware of pregnancy. Nullity

The judgment of the Constitutional Court, dated 21 July 2008, declares the dismissal of a pregnant worker null, even though the dismissing company was unaware of her pregnancy. The Court grants constitutional protection to the worker and sets aside the first instance and appeal judgments which held the dismissal to be unfair. (More information)

3. International judicial jurisdiction. Employment contract

The judgment of the European Court of Justice dated 22 May 2008 establishes that where there are individual employment contracts and defendants from various Member States it is inappropriate to sue all the defendants in a court corresponding to the domicile of any one of them. (More information)

4. Successive temporary contracts. Length of service and its effect on severance payment

When successive temporary contracts for one worker have been arranged through assignment contracts with temporary employment agencies and, immediately afterwards, the worker is temporarily hired by the user company directly, the worker’s length of service dates from the contract arranged with the temporary employment agency, as long as no more than 20 days have elapsed between the last temporary employment agency contract and the company contract. Decision of the Spanish Supreme Court dated 17 January 2008. (More information)

5. Constructive dismissal. Lack of payment and absence of actual work

The judgment of the Labour Chamber of the High Court of Justice of Madrid dated 17 December 2007, reverses the appeal judgement which upheld a worker’s claim for the termination of her employment contract under article 50 of the Statute of Workers. The judgment holds that the employment relationship had already terminated as a result of a constructive dismissal evidenced by a continued failure to pay and the absence of actual employment for the claimant. (More information)

6. Employer’s management power over workers. Smoking ban during break

The judgment of the Labour Chamber of the High Court of Justice of Navarra dated 14 January 2008, holds that smoking, as an expression of individual freedom, relates strictly to the worker’s private life, and that smoking outside company premises during a break is not an abuse. (More information)

7. Transfer. Infringement of the right to privacy

The judgment of the High Court of the Canary Islands (Las Palmas) dated 31 January 2008 declares that the transfer of an employee to another office as a consequence of having a relationship with another employee is an infringement of the right to privacy. (More information)

8. Strike. Illegality. Absence of prior mediation and nature of the strike

The judgment of the High Court of Valencia dated 6 February 2008 examines the legality of a strike called to demand a salary increase above the amount established by the collective bargaining agreement and carried out without the compulsory prior mediation, as this was not requested by the organising union. The judgement holds that the strike was illegal as a result of not complying with a formal requirement, that of prior mediation, and due to its aim being the modification of terms set out in a collective bargaining agreement. (More information)

9. Group of companies. Joint and several liability. Requirements

The judgment of the High Court of Aragón dated 20 February 2008 analyses the concept, extent and scope of groups of companies in labour law, as well as the elements and requirements that must be met for these groups to have consequences related to the employment contracts and employment liabilities of the companies that make up the groups. (More information)

10. Personal data protection. Infringement. Health data in termination notice

The Spanish Data Protection Agency, in its resolution of 5 March 2008, decides that the defendant company infringed Organic Law 15/1999 on the protection of personal data. The company used data concerning the worker’s health in the dismissal letter which communicated the termination of the employment contract due to incapacity. (More information)


 

1. Applicable law. Rome I Regulation

Regulation (EC) No. 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)

The Rome I Regulation regulates the law that the Member States’ national courts must apply to international contracts.

With regard to labour law, the Regulation states that its application may not reduce the protection provided to workers by mandatory regulations, or by regulations which workers can only choose not to apply if to do so is to their benefit.

In relation to individual employment contracts, the Regulation provides the parties with the freedom to choose the governing law. If the parties remain silent on this, the Rome I Regulation stipulates that the law applicable to the individual contract will first of all be the law of the country where the worker performs his/her work and, if this cannot be determined, the national law of the country where the place of business through which the worker was engaged is located.

However, if the contract is more closely connected with a country other than the country strictly determined by the Regulation, the national law of that state will apply to the contract.

 

2. Dismissal of a pregnant woman. Employer not aware of pregnancy. Nullity

Judgment of the Constitutional Court of 21 July 2008

The Constitutional Court analyses in this judgment whether the claimant’s dismissal should be declared null if there is no evidence of the company’s knowledge of the dismissed worker’s pregnancy.

The Constitutional Court holds that the appealed judgments, which set aside the claim for the dismissal to be declared null, affected the scope and guarantees provided by the Statute of Workers (Estatuto de los Trabajadores) as regards gender equality, specifically, the guarantees concerning the dismissal of pregnant workers. As this regulation does not require that the employer be aware of the worker’s pregnancy to consider wrongful dismissals to be null, it must be interpreted as finding dismissals of this type automatically null, such that the simple accreditation of the pregnancy and the fact that the dismissal was not considered fair are enough for it to be declared null.

This is why the Constitutional Court considers that the appealed judgments infringed the worker’s right to effective protection by the court (article 24 of the Spanish Constitution) in relation to the right to sexual equality (article 14 of the Spanish Constitution). The Court states that the lower courts should have interpreted the regulation in the Statute of Workers as meaning objective and automatic nullity, as opposed to nullity on the grounds of discrimination, regardless of whether or not there was evidence of discrimination (and in this case there was not, since the employer was not aware of the pregnancy).

 

3. International judicial jurisdiction. Employment contract

Judgment of the First Chamber of the European Court of Justice of 22 May 2008. Case: Glaxosmithkline and others vs. Jean Pierre Rouard

In this judgment, the European Court of Justice issues a preliminary ruling on the interpretation of Article 6(1) of Council Regulation number 44/2001, dated 22 December 2000 on jurisdiction and the recognition and enforcement of civil and commercial judgments.

Article 6(1) establishes that a person having his/her domicile in the territory of a Member State may be sued in the court corresponding to the domicile of any of the defendants, provided that the lawsuits are related, thereby avoiding irreconcilable decisions being issued in separate proceedings.

Specifically, the preliminary ruling requested by a French court is about whether this special jurisdiction rule may be applied to a lawsuit brought by a worker in the court of one Member State to sue two companies domiciled in two different Member States, or whether, on the contrary, this rule is not applicable to individual employment contracts.

The Court holds that the application of Article 6(1) of the Regulation to employment contracts would deprive workers of the protection that this Regulation guarantees, since this rule also establishes that workers may only be sued in the court of the Member State corresponding to the worker’s domicile.

Therefore, the Court establishes that where there are individual employment contracts and defendants from various Member States, it is inappropriate to conduct the proceedings in a court corresponding to any of the defendants.

4. Successive temporary contracts. Length of service and its effect on severance payment

Judgment of the Labour Chamber of the Spanish Supreme Court, dated 17 January 2008

In this judgment, the Spanish Supreme Court analyses the length of service that should be taken into consideration when calculating the severance for dismissal of an employee who had successive temporary contracts with the same company, some of which were concluded with temporary employment agencies and the rest, without interruption, directly with the company.

The Supreme Court declares that the worker’s length of service dates from the first contract arranged with the temporary employment agency, as long as no more than 20 days elapsed between one contract and the next.

The Court considers that the seniority of a worker in a company is determined by the time for which this worker has rendered services, without interruption, even when different types of contracts have been used for this position, since diversity of contracts does not imply diversity of labour relations.

 

5. Constructive dismissal. Lack of payment and absence of actual work

Judgment of the Labour Chamber of the Spanish Supreme Court, dated 17 December 2007

This judgment analyses whether in relation to a company in bankruptcy proceedings, a claim that a contract had been terminated should be upheld under article 50.1 b) of the Statute of Workers, based on the failure to pay and the absence of actual employment, or whether, on the contrary, these circumstances may be sufficient to consider that there was no longer a labour relationship owing to the employee having been constructively dismissed.

The worker alleged that the contract was not terminated because a collective redundancy plan had not been followed in accordance with the Spanish Bankruptcy Law. On this matter, the Court states that a collective redundancy plan is only necessary when the number of workers affected is above the threshold established by Law, a number which was not exceeded in this case. Therefore, the absence of such a plan does not mean that the labour relation continued in force.

In accordance with the above, the Court declares that at the time of the claim, the labour relation had already terminated due to constructive dismissal, since the lack of payment and absence of actual activity were evident and persistent; the Court therefore rejected the claim.

 

6. Employer’s management power over workers. Smoking ban during break

Judgment of the Labour Chamber of the High Court of Justice of Navarra dated 14 January 2008

In this judgment, the High Court of Justice of Navarra analyses whether a company policy of prohibiting workers from leaving company premises during a break to smoke, except for a justified reason and with permission, complies with the law. The worker brought a claim against the company seeking to have his right to smoke recognised, and therefore allowing him to leave company premises during the break.

The High Court considers that, although the employer has the right to manage the employee’s work, this right must respect the worker’s constitutional rights. Even though the lawful exercise of these constitutional rights is not absolute and may have to give way to important constitutional interests, the essential content of these rights must always be observed. Therefore, it must be established in each case whether the measure adopted is proportionate, taking into account the company’s aim and the worker’s constitutional right.

In this case, the Court considered that there was a conflict between the employer’s management power and the worker’s personal freedom. The High Court holds that the act of smoking, as an expression of individual freedom, belongs strictly to the worker’s private life and that smoking outside company premises during the break is not an abuse, thus confirming the appealed judgment.

 

7. Transfer. Infringement of the right to privacy

Judgment of the Labour Chamber of the High Court of the Canary Islands (Las Palmas) dated 31 January 2008

This judgment declares that transferring an employee to another premises as a consequence of him/her having a relationship with another employee is an infringement of the right to privacy and goes against the person’s dignity.

The Court holds that the right to privacy, as a constitutional right, gives an individual the right to demand third parties do not interfere unnecessarily and illegally in his/her private life, and do not use private information. The employer’s management power to modify the way the employees’ services are rendered may only affect the work environment, not behaviour outside work, unless such behaviour outside work could affect the correct performance of the work or the company’s interests.

Therefore, the judgment establishes that the company’s decision to transfer an employee to different premises, as a consequence of a relationship with another employee, is an infringement of the worker’s right to privacy.

 

8. Strike. Illegality. Absence of prior mediation and nature of the strike

Judgment of the Labour Chamber of the High Court of Valencia dated 6 February 2008

In this judgment, the High Court of Valencia examines the legality of a strike called to demand a salary increase above the amount established by the collective bargaining agreement and carried out without respecting the compulsory mediation period, as this was not requested by the organising union.

The judgment declares that the law requires that a mediation process must be followed before the formal communication of the strike. The High Court, in line with the constitutional jurisprudence, holds that, although the right to organise a strike is a constitutional right and that strikes enjoy a presumption of legitimacy and validity, mediation must be requested and carried out beforehand to protect other constitutional values and interests. For not fulfilling these formalities the strike is illegal.

On the other hand, with regard to the purpose of the strike and the effect on its legality, the Court holds that its aim was to modify conditions established in the collective bargaining agreement still in force. In light of this, the court established that since the strike aimed to alter that previously agreed in the collective bargaining agreement, the strike should also be declared illegal for this reason.

 

9. Group of companies. Joint and several liability. Requirements

Judgment of the Labour Chamber of the High Court of Aragón, dated 20 February 2008

This judgment analyses the concept, extent and scope of corporate groups in labour law, as well as those elements and requirements that must be met for the existence of a group of companies to have consequences for the employment contracts they have entered into and the labour liabilities of each company of the group. Of particular note is the extent to which all the companies of the group have joint and several liability.

Reiterating the case law of the Spanish Supreme Court, the High Court of Aragón holds that it is not enough for two companies simply to belong to the same group for them to have joint and several liability. They must also meet additional requirements, among others: (i) the companies’ work must be organised together; (ii) the employees must work for various companies of the group, simultaneously or successively; (iii) the creation of shell companies with no real substance will be seen as a means of avoiding labour responsibilities; or (iv) the staff and assets must be mixed, the external appearance must be that of a single company and the companies’ management must be unified.

 

10. Personal data protection. Infringement. Health data in termination notice

Resolution R/00238/2008 of the Spanish Data Protection Agency of 5 March 2008

The Spanish Data Protection Agency, in its resolution of 5 March 2008, holds that the defendant company infringed Organic Law 15/1999 on the protection of personal data. The company included data concerning a worker’s health in the dismissal notice informing the worker of the termination of his contract due to incapacity.

The Spanish Data Protection Agency considers a worker’s dismissal notice forms part of the company’s personnel files, and therefore Organic Law 15/1999 on the protection of personal data is applicable. The Agency further establishes that in order to process health data, the express consent of the individual is necessary. Although unwritten express consent may be allowed, an accreditation would be necessary to prove that the consent had been expressed in a free, unequivocal and specific way, after the individual had first been informed of the purpose of the data processing.

Given the impossibility of the company proving the worker’s express consent to the processing of the health data used to declare the worker’s incapacity to perform his job (and, as such, included in the dismissal notice to justified the employment termination), the Spanish Data Protection Agency considered that the company committed a very serious infringement and it was fined EUR 60,101.21.

The information contained in this Newsletter is of a general nature and does not constitute legal advice