October 2009
LABOUR LAW
1. Prevention of occupational hazards.
European legislation. Use of work equipment
Directive 2009/104/EC of the European Parliament
and of the Council of 16 September 2009 replaces Directive 89/655/EEC
and establishes the minimum safety and health requirements for the use
of work equipment by workers at work. (More information)
2. Paternity leave extension
Law 9/2009 of 6 October extends paternity leave
to four weeks after the birth, adoption or fostering of a child. This
extension will be in force as from 1 January 2011. (More
information)
3. Employment and Local Sustainability State
Fund
The government has approved a regulation to
create the Employment and Local Sustainability State Fund with a view to
promoting employment and stimulating the economy. (More
information)
4. Reduced working time to care for a child.
Compensation for dismissal
The decision of the European Court of Justice of
22 October 2009 held that compensation for the dismissal of a full-time
employee enjoying reduced working time must be calculated on the basis
of full-time salary. (More information)
5. Strike. No compensation for damages
The judgment of the Labour Chamber of the
Supreme Court dated 6 April 2009 held that damage cannot be presumed
from a breach of a fundamental right while minimum services were
provided during a strike. No compensation was due because the damage
and the amount of compensation had not been evidenced.
(More information)
6. Father entitled to maternity benefits
The judgment of the Labour Chamber of the
Supreme Court dated 20 May 2009 examined a father’s right to receive
maternity benefits when a mother, who was already receiving such
benefits, decided to request them for the father after she had applied.
(More information)
7. Settlement. Extinctive effects of labour
relationship
In its decision of 21 July 2009, the Labour
Chamber of the Supreme Court stated that the acceptance of a settlement
by an employee did not imply the termination of the labour relationship,
irregardless of whether or not the employer recognised the dismissal as
unfair. (More information)
8. Hand-over contract. Compensation for
termination
The judgment of the National Court dated 23 July
2009 stated that “replacement workers” (workers who partially replace a
worker who takes partial retirement whilst working part-time in the
company) have a right to eight days of salary per year of employment as
compensation for the termination of their employment contracts.
(More information)
9. Variable remuneration. Amendment is not
substantial if determined annually
The judgment of the National Court dated 24
September 2004 stated that a new variable remuneration system
established by the employer does not constitute a more favourable
condition because it was established annually and the employer did not
intend to maintain it indefinitely. (More information)
10. Unfair dismissal. Employer acted in bad
faith
The judgment of the Labour Chamber of the High
Court of Justice of Andalucía (Sevilla) dated 14 April 2009 declared a
disciplinary dismissal as unfair. The High Court stated that the
employer’s actions were contrary to good faith when it tried to induce
its employees to commit a breach of contract. (More
information)
11. Objective dismissal. Does prior notice
have to be given if the employee is on sick leave?
The judgment of the Labour Chamber of the High
Court of Justice of Castilla y León (Valladolid) dated 10 June 2009
stated that prior notice of an objective dismissal must be given when
the employee is on sick leave, and if not given, compensation must be
paid. (More information)
12. Right to privacy. Fingerprint
surveillance system
The judgment of the Labour Chamber of the High
Court of Justice of Murcia dated 15 July 2009 stated that the
establishment of a biometric surveillance system and the storing of
fingerprint data affect employees’ privacy rights. (More
information)
13. Misuse of email by employee. Fair
dismissal
The judgment of the Labour Chamber of the High
Court of Justice of Madrid dated 17 July 2009 held that a dismissal
based on the misuse of email by an employee who, knowing the company’s
policy on the use of IT systems, sent confidential information to
external email accounts, was fair. (More information)
14. Substantial changes to working
conditions. Prior acceptance in employment contract not valid
The judgment of the Labour Chamber of the High
Court of Justice of Madrid dated 20 July 2009 held that employment
contracts cannot include clauses related to the modification of the
employment conditions, if they impose less favourable conditions than
those established by law and the applicable collective bargaining
agreements. (More information)
1. Prevention
of occupational hazards. European legislation. Use of work equipment
Directive 2009/104/EC of the European
Parliament and of the Council of 16 September 2009 concerning the
minimum safety and health requirements for the use of work equipment by
workers at work (second individual Directive within the meaning
of Article 16.1 of Directive 89/391/EEC) (Official Journal
of the European Union of 3 October 2009)
Directive 2009/104/EC (the “Directive”),
which replaces Directive 89/655/EEC, is the second individual
Directive within the meaning of Article 16.1 of Directive 89/391/EEC on
the introduction of measures to promote improvements in the health and
safety of workers at work.
The Directive establishes the obligations of
employers to ensure the existence of minimum safety measures for
employees who operate work equipment, especially those using mobile work
equipment, whether or not self-propelled, and work equipment for lifting
loads. It also establishes provisions concerning the use of work
equipment provided for temporary work carried out at heights, such as
ladders, ropes and scaffolding.
The Directive also establishes minimum
conditions in connection with the installation, maintenance, inspection,
ergonomics and occupational health factors concerning equipment.
Finally, in order to ensure the correct
implementation of these measures, the Directive establishes that workers
using such equipment must be provided with both information and
training.
2. Paternity
leave extension
Law 9/2009 of 6 October on the extension of
paternity leave after the birth, adoption or fostering of a child (Spain’s
Official Gazette of 7 October 2009)
Law 9/2009 extends the current paternity leave
to four weeks as from 1 January 2011. As a consequence, it also amends
article 48 bis of the Statute of Workers (“SW”) by increasing to
four weeks the current continuous 13-day term for paternity leave.
Once this extension is introduced, full-time
workers and part-time workers with a working time of at least 50%, will
be entitled to paternity leave within the terms established in the SW.
Law 9/2009 also amends article 30.1 of Law
30/1984 on the measures to reform public office replacing the 15-day
leave with the four-week paternity leave.
Finally, the ninth temporary provision of Basic
Law 30/2007 on equality between women and men which established that the
father’s leave would gradually be extended to four weeks over a period
of six years from its entry into force, is revoked.
3.
Employment and Local Sustainability State Fund
Royal Decree-Law of 26 October 2009 which
creates the Employment and Local Sustainability State Fund (Spain’s
Official Gazette of 27 October 2009)
The approval of this Royal Decree-Law (the “RDL”)
is based on the need to face the crisis and the delicate employment
situation in Spain by promoting employment and public investment.
The RDL creates a new fund to increase public
investment at a local level through the financing of new works projects
that can be executed immediately, generate employment and for which
local authorities are competent.
Another aim of the fund is to contribute towards
social sustainability through the financing of the standard costs
deriving from educational services and other municipal social services,
especially those deriving from the management of dependant care services.
In relation to the hiring of workers, the first
additional provision of the RDL states that only current contracts or
contracts to be executed with unemployed workers, or self-employed
workers registered with the Public Employment Services as employment
seekers for at least twelve months, will benefit from the fund. These
workers must be employed through the relevant Public Employment Service.
Finally, the RDL states that the Tax Authorities
(Agencia Estatal de Administración Tributaria) and the Social Security
will provide the Ministry for Regional Policy (Ministerio de Política
Territorial) with the necessary data to carefully check the fulfillment
of tax and social security obligations by the contractor local
authorities.
4. Reduced
working time to care for a child. Compensation for dismissal
Judgment of the European Court of Justice
dated 22 October 2009
In the case in question, a Belgian employee, who
was dismissed while on parental leave, filed a claim against her former
employer as the compensation she received was calculated on the basis of
her reduced rather than full-time salary.
The European Court of Justice (“ECJ”)
held that the aim of Directive 96/34 on the framework agreement on
parental leave, cannot be interpreted restrictively.
The framework agreement establishes the minimum
requirements to promote equality between women and men by supporting the
balance between professional and personal life. Its goal is to ensure
that all employees on parental leave continue to enjoy in full all
rights acquired or in the process of being acquired until the end of
such leave. After the paternal leave, employees should be in the same
situation as they were before such leave.
The concept of “rights acquired or in the
process of being acquired” covers all rights and benefits, whether in
cash or in kind, derived directly or indirectly from the employment
relationship, to which an employee is entitled from the start of the
parental leave. The ECJ concluded that if an employer
unilaterally terminates a permanent employment contract while the
employee is enjoying parental leave, the relevant compensation must be
calculated on the basis of his/her full-time salary.
5. Strike. No
compensation for damages
Judgment of the Labour Chamber of the Supreme
Court dated 6 April 2009
The Supreme Court (“SC”) revoked the
decision of the Labour Chamber of the High Court of Justice of Valencia
which ordered the appellant (a company) to pay compensation for breach
of the freedom of association. The SC considered that the employee had
failed to evidence the moral damage allegedly suffered for providing
unnecessary minimum services during a strike.
The SC confirmed the dissenting decision of the
Labour Chamber of the High Court of Justice of Cataluña dated 16
November 2002 brought by the appealing company which held that no
compensation is due when the claimant fails to evidence the grounds for
or the key elements of the compensation sought, such as the specific
damage suffered, whether or not the strike was successful, and whether
there were significant membership withdrawals from the union.
6. Father
entitled to maternity benefits
Judgment of the Labour Chamber of the Supreme
Court dated 20 May 2009
The National Institute of Social Security denied
maternity benefits to a father on the basis of the late filing of the
application. Taking into consideration various legal norms including
Directive 96/34/EC, article 48 of the SW, the Social Security Law, Law
39/1999 on reconciling family and professional obligations and Royal
Decree 1251/2001 regulating maternity and pregnancy benefits, the SC
stated that maternity leave is based on two different frameworks: the
labour relationship between the employee and the employer, and the
benefits system which concerns the Social Security and the employee.
The SC also stated that the terms and
prescription periods in an application for maternity benefits for a
father will be governed by articles 43 and 44 of the Social Security Law.
However, when the mother returns to work, she must inform the relevant
authority in order to avoid undue payments and to allow for payments of
maternity benefits to be made to the father.
7. Settlement.
Extinctive effects of labour relationship
Judgment of the Labour Chamber of the Supreme
Court dated 21 July 2009
The SC stated that acceptance of a settlement
does not imply the termination of a labour relationship on the basis
that such termination is made unilaterally by the company and not by the
employee.
No employee representatives were present at the
signing of the settlement and the employee was suffering from general
anxiety. The SC held that the employee’s general difficulty in
calculating the correct settlement quantity rendered the settlement as
unfair.
8. Hand-over
contract. Compensation for termination
Judgment of the Labour Chamber of the
National Court dated 23 July 2009
Article 49.1.c of the SW establishes that
compensation equivalent to eight days of salary per year of employment
must be paid to replacement workers upon the termination of their
employment contracts. Compensation need not be paid to employees hired
by virtue of internship or training contracts.
In its decision dated 23 July 2009, the National
Court (“NC”) emphasised the difference between hand-over
contracts and internship or training contracts and held that there is a
right to compensation for the termination of hand-over contracts.
9. Variable
remuneration. Amendment is not substantial if determined annually
Judgment of the Labour Chamber of the
National Court dated 24 September 2009
In line with the SC case-law, the NC held that
in order to constitute a more favourable condition, the employer’s
unequivocal intention must be to grant to its employees a new benefit or
right which improves those established in the law.
In this case, the employer did not intend to
establish a fixed variable remuneration system because it is determined
each year based on the financial results of the company.
Furthermore, the NC said that the variable
remuneration system is not a right acquired by contract. Although the
employee’s contract referred to a bonus, it did not specify how it
accrues. The NC therefore confirmed that the employer’s unilateral
implementation of a new variable remuneration system in the following
year was valid.
10. Unfair
dismissal. Employer acted in bad faith
Judgment of the Labour Chamber of the High
Court of Justice of Andalucía (Sevilla) dated 14 April 2009
In this case, knowing that two of its employees
were working for other companies without its consent, the employer hired
two detectives to lead the employees to a breach of contract and then
dismiss them for unfair competition.
The High Court stated that the company’s actions
were contrary to good faith principles. It declared the dismissal as
unfair and ordered the company to pay compensation to the employees.
11.
Objective dismissal. Does prior notice have to be given if the employee
is on sick leave?
Judgment of the Labour Chamber of the High
Court of Justice of Castilla y León (Valladolid) dated 10 June 2009
In this case, an employee, who was on temporary
sick leave, was dismissed without prior notice.
The High Court held that the statutory
compensation for not giving the mandatory prior notice was established
in order to make up for the infringement, regardless of the employee’s
personal circumstances. Consequently, the company was ordered to
compensate the dismissed employee in lieu of notice.
12. Right to
privacy. Fingerprint surveillance system
Judgment of the Labour Chamber of the High
Court of Justice of Murcia dated 15 July 2009
This case concerned a company’s biometric
surveillance system that involved the collection of its employees’
fingerprints. The fingerprints were held in a file with all the
employees’ other personal data.
At first instance, the Labour Court of Murcia
rejected the claim on the grounds that the labour courts were not
competent to decide on a conflict concerning personal data protection.
The Court also held that the establishment of a biometric surveillance
system was not a substantial change to working conditions as per article
41 of the SW.
On appeal, the High Court of Justice of Murcia
held that this was not enough to find that the labour courts were not
competent, as the new surveillance system affected the employees’
privacy rights.
The installation of a surveillance system falls
within an employer’s powers under article 20 of the SW, and the
fingerprint collection process is an aspect of labour law pursuant to
article 9.5 of the Judiciary Law. The fingerprints are added to the rest
of the employees’ personal data, such as their national identity number,
social security number, age or nationality, and these files can be
challenged by the employees in the administrative courts and in some
cases, the labour courts under article 20 of the SW.
Finally, the High Court held that a collective
labour claim was the right type of claim to bring as every employee of
the company was affected by the measure, and it ordered the lower Court
to issue its judgment.
13. Misuse
of email by employee. Fair dismissal
Judgment of the Labour Chamber of the High
Court of Justice of Madrid dated 17 July 2009
In this case an employee was dismissed for
misusing her company email account. The employee was responsible for the
confidential file registry and she used blind carbon copies to send
emails containing confidential information and documents to external
email accounts.
The judgment set out the three conditions that
an employer’s monitoring of emails must meet for it to be lawful: (i) it
must respect the employees’ dignity, (ii) the rules concerning the use
of the company’s IT systems must be published beforehand, and (iii) the
employees must be notified that the monitoring is to be carried out.
Preventive measures can be taken.
The High Court held that all of these
requirements had been met in this case. Not only had the company
published its policy on prohibitions and sanctions for the use of IT
systems on the company intranet, but the dismissed employee had
participated in their drafting.
Following the precedent set in the judgment of
the SC dated 26 September 2007, the High Court held that the evidence of
the misuse had not breached the employee’s privacy right, as she knew
about the prohibitions and control exercised over the use of IT systems
in the company.
The High Court added that although her right to
privacy had not been breached, even if it had, her dismissal would be
unfair not void.
Finally, the High Court rejected the appeal and
confirmed the judgment of the lower court.
14.
Substantial changes to working conditions. Prior acceptance in
employment contract not valid
Judgment of the Labour Chamber of the High
Court of Justice of Madrid dated 20 July 2009
In this case the company added a clause to an
employee’s contract stating that she would accept any modification in
her timetable or working day if the client requested a variation in the
contracted services.
This meant that the employee would be forced to
accept significant changes to her working conditions without having the
option to terminate the contract or receive compensation under article
41 of the SW.
The High Court understood that the parties’
freedom to contract was limited in that they could not agree less
favourable conditions than those established by the applicable
legislation and collective bargaining agreements. Under no circumstances
could the employee be deprived of her most basic rights.
The High Court, following the case law of the
SC, upheld the employee’s claim and declared that the contract had been
terminated pursuant to article 41 of the SW and consequently, ordered
the company to pay the corresponding compensation.
