1. THE OBJECTIVE DISMISSAL OF A WORKER “PARTICULARLY SUSCEPTIBLE TO OCCUPATIONAL RISKS” IS NOT NECESSARILY DISCRIMINATORY IN CONNECTION WITH DISABILITY
Judgment of the First Chamber of the Court of Justice of the European Union of 11 September 2019
The Court of Justice of the European Union has held that the concept of a worker who is “particularly susceptible to occupational risks", within the meaning of Spanish domestic law, and the concept of “disability” do not necessarily coincide. The Court of Justice stated that using performance-based selection criteria for objective dismissals constitutes indirect discrimination on the grounds of disability if the employer has not previously made reasonable adjustments.
2. THE RIGHT TO BE ASSIGNED A FIXED SHIFT WITHOUT A SALARY REDUCTION IS NOT RECOGNISED IN EUROPEAN UNION LEGISLATION
Judgment of the Sixth Chamber of the Court of Justice of the European Union of 18 September 2019
The Court of Justice of the European Union has held that, in the context of an application for parental leave, there is no express recognition in European Union legislation of the right to work a fixed schedule without a reduction of working hours when the normal working regime has different shifts with variable working hours.
3. THE CRIMINAL ACQUITTAL OF THE DISMISSED WORKER DOES NOT LEAD TO REVIEW of THE CLASSIFICATION OF HIS DISMISSAL
Judgment of the Labour Chamber of the Spanish Supreme Court of 4 July 2019
The Spanish Supreme Court heard an application for review submitted by an employee who had been disciplinarily dismissed for conduct that also constituted a crime. Although labour courts had declared the disciplinary dismissal to be fair, the employee was ultimately acquitted by criminal courts for lack of evidence. Nevertheless, the Spanish Supreme Court concluded that the dismissal could not be reviewed given that the criminal acquittal resulted from the application of the right to the presumption of innocence.
4. THE EXEMPTION OF SEVERANCE PAY FROM PERSONAL INCOME TAX DOES NOT APPLY IN CASES OF AGREEMENTS TO TERMINATE EMPLOYMENT
Judgment of the Contentious-Administrative Chamber of the Spanish National Court of 3 July 2019
The Spanish National Court has rejected the application of the Personal-Income-Tax exemption to a settlement reached in conciliation. Personal-Income-Tax legislation excludes from exemption any indemnities resulting from an agreement, pact or contract. The National Court found that the termination of the relationship was actually the result of a termination agreement between the parties and not a real dismissal. In particular, aspects as the lack of grounds for the dismissal, their verbal communication without a letter of dismissal or the acceptance of an amount lower than that which would have resulted from a declaration of unfairness led the National Court to reach that conclusion.
5. A SUBSTANTIAL MODIFICATION DOES NOT ENTITLE THE EMPLOYER TO UNILATERALLY REPLACE THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT
Judgment of the Labour Chamber of the Spanish National Court of 30 July 2019
The Spanish National Court has declared void a company’s decision to modify the collective bargaining agreement applicable under article 41 of the Statute of Workers without having grounds to justify its replacement. The company defended the change on the grounds that it was appropriate to apply a different collective bargaining agreement, but failed to assert any economic, technical, organisational or productive reason justifying the measure. Therefore, the National Court concluded that the company’s decision was carried out in circumvention of the law, consequently declaring the modification null.
6. THE REDUCTION OF VOLUME FOR A CONTRACTOR CAN CONSTITUTE GROUNDS FOR THE TERMINATION OF CONTRACTs FOR A SPECIFIC PROJECT OR SERVICE IF SO ESTABLISHED IN the collective BARGAINING AGREEMENT
Judgment of the Labour Chamber of the Spanish National Court of 16 September 2019
The National Court has affirmed the legality of article 17 of the collective bargaining agreement applicable to the contact-centre sector, which allowed the termination of a contract for a specific project or service due to a decrease in the volume of the contracted campaign. The National Court held that, given the possibility of linking the object of the contract to the execution of specific works or services, the termination of those works or services can operate as a legal grounds to terminate the temporary contract. That does not imply, the National Court stated, discriminatory treatment given that employees with this type of contract are aware that their employment relationship may be terminated not only due to the termination of the contract, but also due to a decrease in its volume (as opposed to dismissals for objective reasons, which are terminated due to the occurrence of specific circumstances).
7. THE HIGH COURT OF JUSTICE OF ASTURIAS CONFIRMS THE EXISTENCE OF AN EMPLOYMENT RELATIONSHIP BETWEEN GLOVO AND RIDERS...
Judgment of the Labour Chamber of the High Court of Justice of Asturias of 25 July 2019
The High Court of Justice of Asturias has ruled in favour of a delivery rider, finding that the necessary circumstances exist to qualify the individual’s relationship with Glovo as an employment relationship. The High Court of Justice found that the employee was rendering services on behalf, and within the scope, of the organisation and management of Glovo, reaching this finding on the basis that there was internal control, the company issued instructions and the employee had no real freedom to be considered as a self-employed worker.
8. ...While THE High COURT OF JUSTICE OF MADRID SUPPORTS GLOVO’s BUSINESS MODEL BY CONSIDERING RIDERS as SELF-EMPLOYED WORKERS
Judgment of the Labour Chamber of the High Court of Justice of Madrid of 19 September 2019
The High Court of Justice of Madrid has endorsed the business model of Glovo’s distribution platform and declared a rider to be a self-employed worker. The High Court of Justice understood that the most inherent elements of an employment relationship, which are dependency and its external nature, are not present, especially because riders have autonomy and freedom to organise the delivery of services. On that basis the High Court of Justice concluded that riders are self-employed workers.
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