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


December 2008

LABOUR LAW

 

1. Temporary recruitment agencies. Employee protection

Directive 2008/104/EC of 19 November 2008 requires Member States adopt measures to protect workers hired by temporary recruitment agencies. (More information)

2. Female victims of domestic violence. Reinsertion into society and the workplace

Royal Decree 1917/2008 of 21 November 2008 approves a program of measures to aid the reinsertion of female victims of domestic violence into society and the workplace. The measures make the hiring of these women more attractive, allow them to make their working conditions more flexible and to improve their training and work orientation. (More information)

3. Limiting the accrual of salaries during dismissal proceedings. Term for the recognition the unfairness of a dismissal

The judgment of 3 November 2008 of the Labour Chamber of the Supreme Court held that, for the purposes of limiting the salaries accrued during a dismissal proceedings, the conciliation proceedings established as the deadline for acknowledging the unfairness of the dismissal (referred to in article 56.2 of the Statute of Workers), are the judicial conciliation proceedings and not just the administrative conciliation or prior conciliation proceedings. (More information)

4. Prevention of occupational hazards. Robbery in a saving bank

The Labour Chamber of the Supreme Court in its judgment of 25 June 2008 held that a robbery in a credit entity was an “occupational hazard” for which the credit entities must adopt prevention measures. (More information)


1. Temporary recruitment agencies. Employee protection

Directive 2008/104/EC of the European Parliament and the Council of 19 November 2008, on temporary agency work. (Official Journal of the European Union of 5 December 2008)

Directive 2008/104/EC of the European Parliament and the Council of 19 November 2008 (“Directive 2008/104”) is designed to ensure that Article 31 of the Charter of Fundamental Rights of the European Union is fully applied to temporary agency workers. Article 31 sets out the right of all employees to working conditions that respect their health, safety and dignity, and to the limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

To that end, Directive 2008/104 establishes that the basic working and employment conditions of temporary agency workers, for the duration of their assignment at a user company, must be at least those that would apply if they had been hired directly by the user company.

Directive 2008/104 puts particular emphasis on those provisions related to the protection of pregnant women, the equal of treatment of women and men, access to collective facilities, and finally, all those related to access to work, promotions and vocational training.

The Directive provides that each Member State must establish the penalties for not complying with its provisions and have adopted the legislation required to ensure temporary agency workers enjoy the protection offered by the Directive by 5 December 2008.

Directive 2008/104 came into force the day of its publication in the Official Journal of the European Union (5 December 2008).

2. Female victims of domestic violence. Reinsertion into society and the workplace

Royal Decree 1917/2008 of 21 November on the program for the reinsertion of female victims of domestic violence into society and the workplace. (Spanish Official Gazette of 10 December 2008)

The aim of this Royal Decree, in force from 11 December 2009, is to create a program for the reinsertion of female victims of domestic violence into society and the workplace.

The program, which includes a series of active employment policy measures, is aimed at all those women who are listed as looking for work, as having suffered domestic violence, and whose aggressor has been convicted or has a protection order or injunction against him.

The measures include guidance offered by individuals specialised in reinsertion, training programs, flexible working conditions, and special economic incentives to compensate for differences in salary that have arisen from the domestic violence situation. Companies are offered incentives to take on female victims of domestic violence and obligated to give them more flexible working conditions and, in particular, to facilitate the geographic mobility of these women.

3. Limiting the accrual of salaries during dismissal proceedings. Term for the recognition the unfairness of a dismissal

Judgment of the Labour Chamber of the Supreme Court of 3 November 2008

This judgment analysed the requirements that the communication of the acknowledgment of an unfair dismissal must meet to limit the accrual of salaries during the dismissal proceedings. The Supreme Court upheld the appealed judgment and held the acknowledgment of unfairness and the communication of the same to the employee must be made between the date of the dismissal and the date of the conciliation proceedings (as defined in the last subsection of article 56.2 of the Statute of Workers, i.e. judicial conciliation proceedings). This conclusion is based on a grammatical, teleological and historical interpretation of the Statute of Workers. The Supreme Court found that as the article in question only refers to “conciliation proceedings” and not specifically, as other articles do, to “prior conciliation proceedings”, the conciliation referred to must be understood as being the judicial conciliation proceedings. The Court also considered that, since the legislator erased the term “prior” from the previous wording of the law, it was clearly the legislator’s aim not to refer to the administrative conciliation proceedings.

4. Prevention of occupational hazards. Robbery in a saving bank

Judgment of the Labour Chamber of the Supreme Court of 25 June 2008

This judgment held that a robbery in a saving bank must be considered an “occupational hazard” and, as a consequence, considered the obligations that the Saving Banks Prevention Service -of occupational hazards- (Servicio de Prevención Mancomunado para las Cajas de Ahorro) and its members must assume.

The National Appeal Court held that the Saving Banks Prevention Services could not be sued in this situation and found that the saving banks must review the risk evaluation at the workplace and adopt the necessary preventive or corrective measures, make provision for robberies in the emergency plan, and give the employees the appropriate training courses to deal with robberies. It also acknowledged the right of the employees’ representatives and prevention delegates to be informed and consulted on these measures.

The National Appeal Court’s judgment was appealed to the Supreme Court, which rejected the appeal and upheld the original judgment. The Supreme Court held that a robbery in a saving bank is an “occupational hazard” because it represents a situation in which an employee may suffer harm at work, where harm is understood to be an illness, condition or injury suffered at work.

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