1. Insolvency of the
employer. Protection of employees
Directive 2008/94/EC of the European Parliament and of the Council
of 22 October 2008 on the protection of employees in the event of the
insolvency of their employer (Official Journal of the European Union of
28 October 2008)
Directive 2008/94/EC of the European Parliament and of the Council of
22 October 2008 (“Directive 2008/94”) repeals Directive
80/987/EEC of the same title. Directive 2008/94 ensures equitable
protection for the employees affected by the insolvency of their
employer who carries out its activity in different Member States. In
particular, the Directive guarantees the payment of the outstanding
claims arising from the employment relationship.
For such purpose, Directive 2008/94 states that the Member States
will adopt the measures needed so that the guarantee institutions can
ensure the payment of such outstanding claims, although it recognizes
the faculty of the Member States to set limitations on the
responsibilities of the guarantee institutions.
Directive 2008/94 will enter into force from the twentieth day of its
publication in the Official Journal of the European Union.
2. Wages Guarantee Fund.
Creation of an electronic register
Order TIN/2942/2008 of 7 October, by means of which an electronic
register is created in the Wages Guarantee Fund and the general criteria
for the electronic processing of certain proceedings is established (Spanish
Official Gazette of 16 October 2008)
This Order creates and regulates the operation of an electronic
register in the Wages Guarantee Fund for the receipt, remittance and
processing of requests, documents and communications relating to the
request for wage guarantee benefits.
The petitioner of such wage guarantee benefits by means of the
electronic register can be employers or employees.
This regulation includes a standard form for the electronic
presentation of the corresponding applications.
3. Social security
contributions. Airfreight. Deferred payment of the company’s instalments
Resolution of 10 October 2008 of the General Treasury of Social
Security regarding authorisation to defer the payment of company social
security contributions of companies that carry out their activity in the
The resolution of 10 October 2008 of the General Treasury of Social
Security (“TGSS”) states that airfreight sector companies which
are up-to-date with their social security obligations can request an
authorisation for the deferment of the payment of their social security
contributions for a nine month period.
The Directors of the Provincial Offices of the TGSS are in charge of
responding to such requests.
This resolution has been adopted with the aim of assisting companies
from the airfreight sector given the difficulties that they are
encountering due to the increase in the price of fuel and a decrease in
4. Transfer of undertaking.
Lease agreement for the premises of the transferor
Judgment of the European Court of Justice of 16 October 2008 in
The European Court of Justice (“ECJ”) passed a judgment on 16
October 2008, in response to the preliminary ruling request of
Commercial Court number 3 of Barcelona relating to Directive 2001/23/EC
of 12 March 2001, on the approximation of the laws of the Member States
relating to the safeguarding of employees’ rights in the event of
transfers of undertakings, businesses or parts of undertakings or
businesses (“Directive 2001/23”).
The following facts were analysed: a company selling electrical
appliances became bankrupt. By means of a writ, the Commercial Court
held that part of the bankrupt company’s establishments should be
directly adjudicated to another company carrying out the same activity.
The said writ established that the direct adjudication was subject to
the rights corresponding to the lessors of the premises.
The lessors of one of the adjudicated premises filed a claim for
eviction due to the transfer without consent. They argue that according
to the provisions of the lease agreement between the parties and the
bankrupt company, as lessors, they must consent to the transfer of the
agreement to another company and that no regulation exists that obliges
them to accept such transfer.
The Commercial Court questions whether article 3.1 of Directive
2001/23 requires that lease agreements must remain in force when their
termination could imply the termination of employment contracts. The ECJ
concludes that Directive 2001/23 does not require such lease agreements
to remain in force as the said article exclusively refers to employment
contracts. The need to protect employees cannot distort the content of
this article to the detriment of third party rights, in this case the
lessors. In the case at hand, the detriment would exist if the lessors
of the premises are obliged to accept the transfer of the lease
agreement against their wishes.
The ECJ finally concludes that, in the event of rulings, the
termination of the employment contracts will not be exclusively due to
the transfer of the company, but to additional circumstances such as the
failure to reach an agreement on the lease contract, not finding other
premises or being unable to transfer employees to other workplaces. The
ECJ describes the said circumstances as being economic, technical or
5. Back pay awarded after
dismissal appeal hearings. Infringement of the right to due process
Judgment of the Constitutional Court number 88/2008 of 21 July
Following a judgment that held that an employee had been unfairly
dismissed, the company in question opted to pay the corresponding
compensation immediately, but also to file an appeal to the High Court
of Catalonia challenging the calculation of the compensation. The High
Court partially upheld the appeal, holding that the compensation should
be calculated on the basis of a lower salary. It ordered the company to
pay the compensation and the corresponding back pay.
The company asked that the judgment be corrected given that the issue
of back pay was not raised in the appeal. The High Court held that there
was no need to correct its judgment. The company filed an appeal with
the Spanish Supreme Court, which was not admitted.
The company then filed an application to the Constitutional Court
seeking a ruling declaring that its fundamental rights had been
infringed. It claimed that its right to protection from the courts had
been breached because the appeal decision had worsened its situation and
the court had not justified its decision.
The Constitutional Court held that, although not expressly referred
to in article 24 of the Spanish Constitution, the right of the appellant
not to be left in a worse off position as a result of the appeal
judgment is included within the right to due process deriving from the
right to defend oneself, and can be inferred from the duty on the courts
to issue consistent judgments.
For these reasons, the Constitutional Court decided to grant the
requested protection on the grounds that the appeal proceedings before
the High Court did not relate to the payment of back pay, and therefore
the High Court should not have ordered the company to pay it.
6. Hand-over contract. Valid
termination during redundancy proceedings
Judgment of the Labour Chamber of the Supreme Court dated 23 June
This judgment analysed if a company was liable to pay the retirement
pension of a partially retired employee when the hand-over contract of
an employee who was partially substituting the former was terminated. In
this case, the termination was a consequence of a collective redundancy
procedure by means of which the company was authorised to terminate all
its employment contracts.
The High Court of Aragon held that the company was not liable because
it was impossible to keep the hand-over contract in force given that the
company had ended its activity and, after the redundancy procedure, it
was authorised to terminate all the employment contracts that it had
The National Social Security Institute appealed, basing its claim on
a judgment of the High Court of the Basque Country which held that the
company is always liable to pay the pension, regardless of the reasons
for the termination. It also argued that the second additional provision
of Royal Decree 1131/2002 of 31 October, which regulates the social
security aspects of part-time employees and partial retirement, did not
contain any exception to the obligation to substitute a partially-retired
employee with another employee.
The Spanish Supreme Court, referring to its own precedent of 29 May
2008, rejected the appeal. The Supreme Court held that the collective
redundancy affecting all the company’s employees had not only terminated
the hand-over employment contract, but also the employment contract of
the partially-retired employee; in fact, they both became unemployed on
the same date. Consequently, since there was no employment relationship
with the partially-retired employee, there was no obligation to hire
another employee to replace him.
7. Trade union elections.
Illegality. Employer’s opposition
Judgment of the Labour Chamber of the Supreme Court dated 2 June
In this case the appellant trade union had notified the employer (Autonomous
Community of Castilla y Leon) of its intention to held elections in
various workplaces. This request was rejected by the regional
authorities because a general agreement had been reached with the
majority of trade unions on the promotion of their elections, and
because the trade union in question was no longer a sufficiently
representative trade union following changes to the regional authorities’
departmental structure. This meant that the appellant trade union was
not authorised to carry out many activities in the regional authorities’
The trade union filed a claim against the regional authorities, which
was rejected. The trade union appealed the decision to the Spanish
Supreme Court, arguing that by not allowing it to give prior notice of
its elections, the right to freely engage in trade union activity had
been infringed. The trade union considered that the employer could not
refuse to hold the elections, given that the employer cannot decide if
the elections are legal and, therefore, the employer cannot prevent the
election process on the basis that the trade union was not entitled to
call them; this despite the fact that it could challenge the legality of
the elections before the courts.
The Spanish Supreme Court rejected the appeal and held that the
actions taken by an employer to prevent clearly illegal elections being
held was reasonable and justified. The right to promote trade union
elections, which is part of the constitutional right to engage in trade
union activity, must be exercised in accordance with the regulations
that apply to this right. The failure to comply with those regulations
justified the employer’s opposition to the exercise of the right.
However, for this to be the case the regulations must seek an equal or
greater interest, such as that of other trade unions or employees in
8. Dismissal. Nullity.
Victims of domestic violence
Judgment of the Labour Chamber of the High Court of Catalonia
dated 3 October 2008
In this judgment the High Court of Catalonia upheld a first instance
judgment and, as a consequence, held that the disciplinary dismissal of
an employee who at the moment of the employment termination was on
temporary sick leave because she had been a victim of domestic violence
The Labour Chamber of the High Court held that pursuant to Basic Law
1/2004 on measures to protect against domestic violence, the
disciplinary dismissal of a victim of domestic violence is only valid if
the employer can show that the disciplinary measure is totally unrelated
to the exercise by the employee of her rights under Basic Law 1/2004.
Otherwise, the employer’s decision must be considered void according to
art. 55.5 b) of the Statute of Workers owing to the special
circumstances and protection of the victims of domestic violence.
Of particular note in this case is the fact that the company had
dismissed the employee arguing that, in spite of her temporary sickness,
“she lived a totally normal life”. The Labour Chamber of the High Court
held that such an imprecise reason to dismiss her did not overcome the
presumption that all dismissals of victims of domestic violence were
null. As a ground for dismissal it was insufficient and clearly aimed at
punishing her absences from work, absences that she was entitled to take.