August 2008
LABOUR LAW
1. Unfair dismissal. Temporary employment contract to perform a
specific work or service. Reduction of the contracted activity
The judgment of the Supreme Court dated 10 June 2008 affirms that a
reduction in the contracted activity does not permit the termination of
the employment contract to perform a specific work or service of an
employee hired for the subcontracted activity, as the subcontracting
agreement has not reached the end of its term. (More
information)
2. Training outside working hours for the prevention of occupational
hazards
Time spent on attending mandatory courses on the prevention of
occupational hazards outside working hours must be compensated by the
employer through a corresponding reduction in working hours. Decision of
the Supreme Court dated 12 February 2008. (More
information)
3. Transfer of undertakings. Continuity of the business activity by
an employee-held company set up by former employees of the transferor
The continuity of the business of the transferor by a company set up
by the former employees of the transferor company, following the
termination of their employment contract as a consequence of a
collective dismissal, is considered a transfer of undertakings. Decision
of the Supreme Court dated January 23, 2008. (More
information)
1.
Unfair dismissal. Temporary employment contract to perform a
specific work or service. Reduction of the contracted activity
Judgment of the Labour Chamber of the Supreme Court dated 10 June
200
The Supreme Court considered the termination of the labour
relationship of an employee of a contracting company invalid based on
the principal’s claim that the contracting company decided to allocate a
lower number of employees than that requested for the work. The Court
based this decision on the fact that the contractual relationship had
not come to an end, there were no provisions regarding this issue in law,
the collective bargaining agreement or in the employment contract itself.
Had the Court decided otherwise, it would have been leaving the validity
and compliance of the contract open to the discretion of one of the
parties.
Nevertheless, the Supreme Court stated that this could have been
established in the employment contract by adding a clause establishing
that the labour relationship would terminate in such event and,
therefore, the termination of the employment contract would be valid
even in the event of redundancy.
2. Training outside working
hours for the prevention of occupational hazards
Judgment of the Labour Chamber of the Supreme Court dated 2
February 2008
The Supreme Court examined whether employees who attended courses on
the prevention of occupational hazards outside working hours had the
right to be compensated for those hours through a corresponding
reduction in their working time.
The Supreme Court upheld the doctrine that spending hours on training
is not the free will of the employee, as such hours are for services
rendered to the employer; thus, the company benefits from such hours in
consideration of the fact that it is fulfilling its legal obligation of
carrying out its activity with a greater degree of safety and more
capable personnel.
Moreover, the Supreme Court affirmed that a main principle of labour
law is the establishment of a clear distinction between working time and
the employees’ own personal time. Working time not only refers to the
time spent on work, but also to the hours the employee makes available
to the employer for which the former would be subject to the latter’s
disciplinary powers and organisation. Personal time refers to hours that
belong only to the employee and which only he/she may dispose of. These
hours are protected from any unilateral interference by the employer and
the maximum time at the disposal of the employer must coincide with the
agreed working time in the collective bargaining agreements and
employment agreement. Outside this agreed working time, the employer may
not require the performance of any professional activity and has no
disciplinary power over the employee.
The Supreme Court held that attending mandatory courses on the
prevention of occupational hazards outside working hours must be
compensated with free hours.
3. Transfer of undertakings.
Continuity of the business by an employee-held company set up by former
employees of the transferor
Judgment of the Labour Chamber of the Spanish Supreme Court dated
23 January 2008
The Supreme Court examined the transfer of undertaking of an
education centre that terminated the labour relationships with its
employees through a collective dismissal after that, the former
employees managed and ran the education centre under the same name,
through and employee-owned public limited company set up by them.
The Supreme Court decided that there was a transfer of undertakings
for all purposes, including the right to receive an extra-payment based
on the length of services of certain employees. The Supreme Court found
that there existed a transfer of undertaking by the dismissed employees,
whose will and intention was to maintain the previous labour
relationships, the latter being a compelling reason to consider that the
new company was subrogated in the rights and duties of the former
company.
