July
2009
LABOUR LAW
1. Special agreement with the social
security authorities. Modifications
Order TIN/2077/2009 adapts Order TAS/2865/2003
on the special agreement with the social security authorities to the new
regulation of such special agreement introduced by article 2 of
Legislative Royal Decree 2/2009 of 6 March on urgent measures for the
maintenance of employment and the protection of unemployed persons. (More information)
2. Union representatives’ right to receive
information about remunerations
The Supreme Court, in its decision of 19
February 2009, held that remuneration is not personal data. Therefore,
the employee’s consent is not needed for a union representative to be
given access to these data. However, in this case the Court considered
that the company had already fulfilled its information obligation by
providing the union representatives with a basic copy of the employment
contracts and information about their salaries by category and
department. (More information)
3. Unfair competition. To work for a
competitor after the employment termination is not unlawful, unless
agreed otherwise
The decision of the Supreme Court of 16 June
2009 held that employees who are not bound by a non-compete agreement
after the employment termination may work for a competitor and benefit
from the experience acquired with a previous employer without being
guilty of unfair competition.
(More information)
4. Unfair dismissal. A long-term disability
does not make an employee unfit for a post
In its decision of 30 March 2009, the High Court
of Justice of Murcia held that the dismissal of an employee who had been
on temporary disability leave during a long period of time was unfair.
The Court held that the dismissal was unfair because the company did not
prove that upon returning to work the employee still had physical
limitations to perform usual work. (More
information)
5. Voluntary leave to take care of a child.
Working in another company that makes conciliation easier is allowed
According to the High Court of Justice of Madrid
decision of 15 April 2009, an employee on leave to take care of a child
may accept employment that objectively facilitates the conciliation
between both professional and family life, as well as that provides
income to help take care of the child. (More
information)
6. Sex discrimination is only deemed to
exist if it affects the whole female workforce
The decision of the High Court of Justice of
Madrid of 22 April 2009 held that discrimination against women exists
regarding their professional and economic promotion only if this
discrimination affects the female workforce as a whole. Moreover, the
court rejected the argument that the promotion criteria based on a split
working day, a flexible timetable, presence at opening and closing or
participation in training events outside working hours, affects women in
general and constitutes indirect discrimination
(More information)
7. Temporary disability and holidays
The High Court of Justice of Valencia, in its
decision of 5 May 2009, held that an employee was entitled to take
holidays in a different date to that initially agreed with the company
because they coincided with a period of temporary disability leave.
(More information)
8. Objective dismissal. Imprecise grounds
for dismissal result in unfairness
In its decision of 11 May 2009, the High Court
of Murcia held that a dismissal based on objective grounds was unfair
because of a formal defect in the dismissal letter. When describing the
production reasons on which the dismissal was based, the company did not
specify dates, amounts or regular clients who had reduced their orders. (More information)
9. The implementation of the Kosher ritual
does not constitute a substantial modification of working conditions
In a decision dated 2 June 2009, the High Court
of Justice of Murcia rejected a collective dispute claim filed by a
union against the unilateral decision of a company to implement the
Kosher ritual in its production process, in such a way that some workers
had to occasionally work on Sundays. The court based its decision on the
fact that certain minor modifications cause no harm to employees. (More information)
10. Salary. Is there an obligation to
increase salaries according to the Consumer Price Index?
On 9 June 2009, the High Court of Justice of
Catalonia rejected the collective dispute claim filed by the trade
unions UGT and CC.OO. requesting salary increases for 2009. The Court
held that the collective bargaining agreement referred to the official
Consumer Price Index established by the Government and thus, as such
index was not published, the company could not be expected to increase
salary on the basis of any other index. In this respect, the company
could not use the estimated increase for pensions and public servants,
as it is not equivalent to the Consumer Price Index.
(More information)
11. Sexual harassment is cause of
occupational accidents
On 7 May 2009, the Labour Court number 30 of
Madrid held that sexual harassment is cause for occupational accident
invalidity. (More information)
12. Data protection. Disclosure of personal
employee data for commercial purposes
The Data Protection Agency decided on the
disclosure of employee personal data to receive a commercial offer. The
Data Protection Agency held that the employer had incurred in two
infringements: the use of employee personal data for purposes that are
incompatible with those for which the data were collected and the
disclosure of personal data without the employees consent.
(More information)
1.
Special agreement with the
social security authorities. Modifications
Order TIN/2077/2009 modifies Order
TAS/2865/2003 of 13 October, which regulates the special agreement with
the social security authorities (Spanish Official Gazette 31 July 2009)
Article 2 of Legislative
Royal Decree 2/2009 of 6 March on urgent measures for the maintenance of
employment and the protection of the unemployed (“LRD 2/2009”),
modified the terms of the special agreement with the social security
authorities referred to in the thirty-first additional provision of the
General Social Security Law (“GSSL”).
The amendments made were
as follows: (i) the contributions for which the State Public Employment
Service is responsible will only be deducted when contributions must be
paid towards the state retirement pension (previously, the deduction was
not subject to the pension condition); and (ii) if an employee carries
out an activity for which contributions must be made to the social
security during the term of the special agreement, the payments that
coincide with those corresponding to the activity will be applied to the
period in which the employee is responsible for the payment. Any
remaining amounts when the employee goes into retirement would be paid
back to the employer (under the former regulations, the full amount was
repaid to the employer instead of being applied to the period in which
the employee is responsible for the payment).
This Order will be applicable to all special
agreements subscribed since 8 March 2009 (date on which LRD 2/2009 came
into force).
2.
Union representatives’ right to
receive information about remunerations
Decision of the Labour Chamber of the Supreme
Court dated 19 February 2009
In this decision the
Supreme Court (“SC”) rejected an appeal filed against a decision
of the National Court that rejected a trade union’s claim. The trade
union claimed that union rights had been infringed by the company
because it had refused to provide information regarding its employees’
monthly remuneration.
The SC summarised the
constitutional doctrine on the scope of the information right of union
representatives: an employee’s remuneration is professional data, not
personal, and there is a constitutional justification for the virtual
sacrifice of individual rights in favour of collective interests. Thus,
the SC concludes that an employee’s remuneration is not personal or
private data that must be reserved to safeguard the employee’s privacy.
As such, it is not necessary that the employee consent to union
representatives having access to these data.
However, the SC rejected the appeal because it considered that by
providing details of the employees’ salaries by category and department
and a copy of their employment contracts, the company had already
provided the trade union with the information required by law.
Furthermore, the union had not offered any specific reason justifying
its need to know the requested data in relation to the exercise of its
constitutionally recognized functions.
3. Unfair
competition. To work for a competitor after the employment termination
is not unlawful, unless agreed otherwise
Decision of the Civil Chamber of the Supreme
Court dated 16 June 2009
In this case, the SC
overturned a judgment of the Provincial Court of Barcelona that held
that various employees were guilty of unfair competition when went to
work for a competitor that had been incorporated by the wife,
sister-in-law and daughter of one of them.
The SC held that an
employee acts in bad faith and is guilty of unfair competition when
he/she works for a competitor before his/her current employment contract
is terminated.
However, the SC also held that when a
non-compete covenant has not been agreed, the fact that an individual
begins to work for a competitor (regardless of whether or not he/she has
participated in its incorporation), once the employment relationship
with a previous employer has ended, cannot be considered as unfair
competition, even when the new activity is similar to the previous one
and he/she can benefit from the experience acquired in the former
company.
4.
Unfair dismissal. A long-term
disability does not make an employee unfit for a post
Decision of the Labour Chamber of the High
Court of Justice of Murcia dated 30 March 2009
In this judgment the High
Court of Justice of Murcia upheld a previous decision in which
the dismissal of an employee who had been on temporary disability leave
for 1,148 days over a period of 4 years and who the company had
dismissed on the grounds of unforeseeable unfitness (ineptitud
sobrevenida) for her post was declared unfair.
The High Court of Murcia held that the decisive
factor in determining the fairness of a dismissal was the employee’s
reduced performance and the repercussions this has on his/her activity.
There must be irrefutable proof that once the suspension for temporary
disability is over, the employee is still affected by a physical
limitation that is incompatible with the work normally carried out.
Sufficient proof must be given of the cause of the unexpected unfitness
for the post.
5.
Voluntary leave to take care of
a child. Working in another company that makes conciliation easier is
allowed
Decision of the Labour Chamber of the High
Court of Justice of Madrid dated 15 April 2009
According to this
decision, an employee on leave to take care of a child may work for
another company if this second work facilitates the conciliation between
her legitimate wish to work and the need to take care of her family.
The High Court of Justice
of Madrid held that the freedom of an employee to decide to request
leave is undeniable, being entitled to work in another company during
such period. However, the High Court of Justice of Madrid stated that
the fact that the new work conditions facilitate the care of the child
must be clearly evidenced, since the interest of the company granting
leave must also be protected.
In the case at hand, the court held that the
location of the new employer’s head office facilitated the employee’s
trip to work and the working timetable also seemed to be more fitting
with family life. Therefore, the High Court found no reasons to reject
the employee’s right to retain her post in the company granting leave.
6.
Sex discrimination is only
deemed to exist if it affects the whole female workforce
Decision of the Labour Chamber of the High
Court of Justice of Madrid dated 22 April 2009
In this case, the High
Court of Justice of Madrid had to decide whether the actions of a
company regarding professional and economic promotion were
discriminatory. The claims brought were rejected at first instance by
the labour court considering there to be no discrimination and the High
Court of Justice of Madrid upheld this decision.
On the one hand, the
claimants argued that the remuneration of men and women differed and
referred to difference in the percentage increase of personal bonuses.
The High Court of Justice of Madrid stated that personal bonuses include
very diverse items, thus any comparison is impracticable. The court
clarified that the claimants had not sufficiently evidenced any
discrimination in order to transfer the burden of proof to the company,
as the information provided distorts the contrast between men and women.
In this regard, the court referred to a decision of the European Court
of Justice of 8 June 2004, which established that the principle of
equality as regards remuneration, and the principle of no
discrimination, implicitly require that male and female employees be in
a comparable situation.
On the other hand, the claimants argued that due
to the criteria for promotion (full-time working day, split and flexible
working day to be present at opening and closing, rendering services on
Sundays or holidays etc.) female employees had less probability of
promotion. However, the High Court of Justice of Madrid held that the
claimants failed to sufficiently justify the reasons why the employer
criteria affected women in general and that, in any event, if indirect
discrimination were deemed to exist, it would affect the female
workforce as a whole.
7.
Temporary disability and
holidays
Decision of the Labour Chamber of the High
Court of Justice of Valencia dated 5 May 2009
In this case, the High Court of Justice of
Valencia analysed a situation in which an employee was on temporary
disability leave at the same time as a period of holidays have been
agreed. The High Court of Justice of Valencia referred to the decision
of the Supreme Court of 3 October 2007, which held that in such cases
the employee does not have the right to take the holiday on different
dates.
Nevertheless, the High Court of Justice of
Valencia held that the previous case law could not be applied, since the
decision of the European Court of Justice of 20 January 2009, which
interprets article 7 of Directive 2003/88/EC of the European Parliament
and of the Council, of 4 November 2003, concerning certain aspects of
the organisation of working time (the “Directive”), had
established new rules that must be followed. That decision held that:
Article 7 of the Directive does not preclude
national legislation or practices according to which a worker on sick
leave is not entitled to take paid annual leave during sick leave.
Article 7 of the Directive does preclude
national legislation or practices which provide that the right to paid
annual leave is extinguished at the end of the leave year and/or of a
carry-over period laid down by national law, even where the worker has
been on sick leave for the whole or part of the leave year.
Article 7 of the Directive does preclude
national legislation or practices which provide that, on termination of
the employment relationship, no allowance in lieu of paid annual leave
not taken is to be paid to a worker who has been on sick leave for the
whole or part of the leave year.
In line with this, the High Court of Justice of
Valencia held that the right of the plaintiff to enjoy holidays during a
different period to that initially agreed must be recognized.
8.
Objective dismissal.
Imprecise grounds for dismissal result in unfairness
Decision of the Labour Chamber of the High
Court of Justice of Murcia dated 11 May 2009
In this judgment the High Court of Justice of
Murcia rejected the appeal filed by a company against a first instance
decision that held that the dismissal of an employee on objective
grounds was unfair.
The dismissal had been declared unfair on the
grounds of a formal defect in the communication of the dismissal to the
worker consisting of the imprecise description of the production reasons
that justified doing away with his post. In the dismissal letter the
company alleged there had been a decrease in orders but it did not
identify dates, amounts or regular clients. The Labour Court found that
this inaccuracy meant that the employee could not defend himself.
The High Court of Justice of Murcia upheld the
unfairness of the dismissal considering that, although the dismissal was
not null because formal requirements had not been met (there was a
written communication), the description of the objective grounds was
insufficient
9.
The implementation of the Kosher
ritual does not constitute a substantial modification of working
conditions
Decision of the Labour Chamber of the High
Court of Justice of Murcia dated 2 June 2009
In this case, a union filed a claim against a
producer of sweets for calling employees to clean the premises on
Sundays. The company had decided to introduce its products in Israel and
therefore had to produce them with a view to their consumption by
practicing Jewish people. In this respect, production had to follow the
special procedure called Kosherization. In order to obtain the Kosher
certificate the company had to clean the premises and tools in the
presence of a rabbi every 3 or 4 months. These tasks were to be carried
out on Sunday to avoid affecting production and because working on
Saturdays is prohibited by Jewish religion. In order to carry out these
cleaning tasks on Sundays, the company called upon certain employees to
whom it offered, at their discretion, either overtime pay or additional
holidays for their work.
The union grounded its claim on that the company
should have acted in accordance with article 41 of the Statute of
Workers. The first decision rejected the claim and stated that the
modification did not affect essential employment conditions, it was
occasional, it was remunerated and involved the company’s potential
access to new markets.
Moreover, the High Court of Justice of Murcia
held that there was no substantial modification of working conditions as
these constituted minor modifications that did not harm employees, whose
rights remained intact.
10.
Salary. Is there an
obligation to increase salaries according to the Consumer Price Index?
Decision of the Labour Chamber of the High
Court of Justice of Catalonia dated 9 June 2009
A trade union filed a collective dispute claim
requesting that, according to the applicable collective bargaining
agreement, the salary had to be increased by 2% as an estimate of the
Consumer Price Index for 2009.
As the official estimate of the Consumer Price
Index had not been published, the unions requested the application of
the 2% salary increase estimated for pensions and public servants, but
the court considered that this index could not be taken as a reference.
The High Court of Justice of Catalonia stated
that the decision of the court clearly explained when an estimate of the
Consumer Price Index can be taken as “official” by determining two
concepts: the authority that declared it and the means through which it
was declared.
In this case, there was no express declaration
from the Government -or any public authority- regarding the estimate of
the Consumers Price Index and no estimate was published in the Spanish
Official Gazette.
11.
Sexual harassment is
cause of occupational accidents
Decision of the Labour Court number 30 of
Madrid dated 7 May 2009
In this case, a claim was filed by a worker
against the Social Security requesting a change of contingency in her
invalidity situation, alleging that the psychological disorder suffered
was exclusively caused by her work.
Back in 2005, the labour courts held the
dismissal of the employee to be null upholding that its discriminatory
nature and the sexual harassment suffered had been evidenced, decision
that was confirmed by the High Court of Justice of Madrid. The Social
Security had acknowledged the claimant’s total permanent invalidity
derived from a general contingency due to severe depression.
In the case at hand, the Labour Court held that
the cause of the disability was originated from an occupational accident.
The court concluded that the employee’s invalidating psychological
disorder was caused by the sexual harassment suffered by the employee in
the company, thus the disorder was caused by an occupational accident.
12.
Data protection.
Disclosure of personal employee data for commercial purposes
Decision of the Data Protection Agency
A complaint was filed
before the Data Protection Agency (“DPA”) as a consequence of
employees of a public hospital receiving correspondence from a mutual
benefit organisation containing information regarding the opening of a
commercial office and offering different products. The hospital had
taken the employees’ personal data from the work database and disclosed
it to the organisation so that they could send the information.
Article 4.2 of the Data
Protection Law (“DPL”) states that personal data cannot be used
for purposes other than those for which they were received. The Data
Protection Agency considered that using personal data from the
hospital’s database to send information regarding the opening of private
entity’s office and the products offered is incompatible with the
purposes for which such data had been received.
Moreover, article 11.1 of
the DPL states that the data subject’s consent is necessary before
disclosing or assigning them. In the case at hand, the hospital argued
that the exception set out in the DPL applied, as the data came from a
public source (the bulletin board containing the amounts received by the
employees on the basis of productivity, as is mandatory for statutory
employees in the health services sector). The DPA held that these
publications were limited to making the productivity of employees
public, thus the use of these data for any other purposes was unlawful.
The DPA stated that the
hospital had committed two data protection infringements: use of
personal data for purposes other than those for which the data had been
collected and communication of such data without the consent of the
affected employees. Consequently, the DPA requested the hospital to
adopt the adequate measures to rectify the defects detected and to avoid
future infringements.
