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.
