February 2009
LABOUR
LAW NEWSLETTER
1. European Union. Social security schemes applicable to posted
workers
Commission Regulation no. 120/2009, of 9 February 2009, amends
annexes 2 to 5 of Regulation no. 574/72 laying down the procedure for
implementing Regulation no. 1408/71 on the application of social
security schemes to employed persons, to self-employed persons and to
members of their families moving within the Community.
(More Information)
2. Creditors’ meeting. Surcharges for outstanding social security
contributions are considered subordinate in cases of creditor insolvency
The decision of the Supreme Court dated 21 January 2009 held the
surcharges to be subordinate because of their punitive nature on the
basis that they fall under the scope of “other monetary sanctions”
of section 4 of article 92 of the Insolvency Law. (More
Information)
3. Probationary period and temporary disability. Valid
termination by the employer
In its ruling of 12 December 2008, the Supreme Court ruled on the
termination of an employment during a probationary period. The Supreme
Court found that the extension did not restrict the employer’s right to
discontinue the contract and the termination of the agreement by the
employer was therefore not abusive or discriminatory. (More
Information)
4. Conciliation claim. Consequences for the calculation of the
limitation period for dismissal claims
The High Court of Justice of Castilla-La Mancha’s ruling dated 4
December 2008 analysed the consequences of filing a settlement
proceeding on the limitation period for filing a claim for dismissal.
(More Information)
5. Reduction of working hours for legal guardianship. Reduction
must be adjusted to the nature of the services
In its ruling of 30 January 2008, the Labour Court number 6 of Madrid
dismissed a claim filed against a company’s decision to deny a reduction
of working hours for legal guardianship. The Labour Court found that the
reduction of working hours by excluding Saturdays was unfeasible on the
basis that Saturdays were the days on which the company did most of its
business. (More Information)
1. European Union. Social
security schemes applicable to posted workers
Commission Regulation no. 120/2009, of 9 February 2009, amending
Council Regulation no. 574/72 laying down the procedure for implementing
Regulation no. 1408/71 on the application of social security schemes to
employed persons, to self-employed persons and to members of their
families moving within the Community (Official Journal of the European
Union of 10 February 2009)
Commission Regulation no. 120/2009, which came into force on 2 March
2009, amends annexes 2 to 5 of Regulation no. 574/72 upon the request of
some Member States or their competent authorities.
The amendment sets out the authorities responsible for ensuring that
social security regulations are implemented in accordance with Community
law, after certain Member States had made designations for this same
purpose.
2. Creditors’ meeting.
Surcharges for outstanding social security contributions are considered
subordinate in cases of creditor insolvency
Judgment of the Civil Chamber of the Supreme Court dated 21
January 2009
In this appeal lodged by the General Treasury of the Social Security
(“GTSS”), the Supreme Court (“SC”) examined whether
surcharges for social security contributions that remained outstanding
after the established payment term should be considered subordinate in
cases of creditor insolvency.
The GTSS did not consider the surcharges subordinate given that they
did not fall under the six requirements listed in article 92 of the
Insolvency Law. Moreover, it considered them not to be punitive in
nature, but rather as part of the contributions themselves.
In contrast, the SC held the surcharges to be subordinate precisely
because of their punitive nature on the basis that they fall under the
scope of “other monetary sanctions” of section 4 of article 92 of
the Insolvency Law for the following reasons:
(i) the “monetary sanction” should be interpreted broadly;
(ii) the surcharge in question was an improper sanction because it
operates as a penalty for the debtor;
(iii) the language of the Social Security Law regarding the resources
of the Social Security links surcharges with sanctions.
3. Probationary period and
temporary disability. Valid termination by the employer
Judgment of the Labour Chamber of the Supreme Court dated 12
December 2008
In this case, the SC ruled on the termination of an employment during
a probationary period. The claimant had entered into a fixed six month
term agreement with a company as a temporary employee including a 60 day
probationary period. The company decided to terminate the agreement
while the employee was on leave for temporary incapacity caused by
general illness on the basis that the probationary period was
unsuccessful.
The claimant alleged a violation of article 14.3 of the Statute of
Workers (“SW”), which states that “the probationary period is
suspended when the employee is on leave for temporary incapacity,
maternity and adoption and foster care, provided that the parties so
agree”.
The SC reiterated its view that the provision in article 14 of the SW
to discontinue the agreement during the agreed probationary period is
available for both parties and, particularly, the employer. Nevertheless,
in the case at hand the parties had actually agreed to suspend the
probationary period in the event of temporary incapacity. Therefore, the
underlying issue was whether the probationary period was merely
suspended or if the agreement instead implied a restriction of the right
to discontinue the agreement in addition to the suspension.
The SC held that the agreement to extend the term of the probationary
period is a guarantee for both parties provided that the probationary
period can be extended beyond the legal term. However, it found that the
extension did not restrict the employer’s right to discontinue the
contract and the termination of the agreement by the employer was
therefore not abusive or discriminatory.
4. Conciliation claim.
Consequences for the calculation of the limitation period for dismissal
claims
Judgment of the High Court of Justice of Castilla-La Mancha dated
4 December 2008
In this case, the High Court of Justice of Castilla-La Mancha (“HC”)
analysed the consequences of filing a settlement proceeding on the
limitation period for filing a claim for dismissal.
In this regard, the HC held that the filing for settlement before the
Mediation, Arbitration and Conciliation Services (“MACS”) leads
to the suspension of the limitation period (20 business days -Saturdays,
Sundays and bank holidays are excluded-) on the date the settlement
proceeding is filed with the MACS (not including the filing date). The
HC also stated that the term of the limitation period elapsed prior to
the filing of the settlement proceeding cannot be recovered. Therefore,
upon filing the settlement proceeding, the claim must be filed within
the remaining period.
Moreover, the limitation period will resume the business day after
the settlement proceeding unless such proceeding has not taken place on
the fifteenth day from the settlement request given that the limitation
period will in all cases resume on the sixteenth business day after the
filing for settlement.
In the case at hand, the claim was filed 22 business days after the
termination of the contract and the HC therefore held that the
limitation period had already expired.
5. Reduction of working
hours for legal guardianship. Reduction must be adjusted to the nature
of the services
Judgment of the Labour Court no. 6 of Madrid dated5 February 2009
The Labour Court number 6 of Madrid (“LC”) dismissed a claim
filed against a company’s decision to deny a reduction of working hours
for legal guardianship.
On the basis of article 37.5 of the SW, the claimant, a beauty
advisor in a perfumery, requested a reduction of working hours in order
to look after her child (under eight year old). She requested Saturdays
be excluded from her normal working timetable in order that she could
work from 9:30 to 13:30 hrs. Monday to Friday. The company rejected her
request on the basis that most of the company’s business was carried out
on Saturdays and there would be no qualified sales staff at the
perfumery on those days if it were to accept her request.
The LC stated that the reduction of working time and timetable
organisation must be done taking into account the ordinary working day
as a reference, which in the case at hand was Monday to Saturday and not
Monday to Friday. Likewise, the decision established that, even when the
employee can choose to reduce working hours, the specific circumstances
of each case must be examined when such right affects the employer’s
right to manage and organise the company. The LC found that the
reduction of working hours by excluding Saturdays was unfeasible on the
basis that Saturdays were the days on which the company did most of its
business.
