September 2020

 
     
 

LABOUR LAW

LEGISLATIVE AND CASE LAW DEVELOPMENTS

 
     
 

1. THE CONSTITUTIONAL COURT ruleS FOR THE FIRST TIME on THE existence OF DISCRIMINATION by association ON THE BASIS OF gender

Judgment of the Second Chamber of the Constitutional Court of 29 June 2020

The Constitutional Court has found that interpreting a rule that provides for paid leave for the hospitalisation of a relative in such a way that the leave cannot be enjoyed when the hospitalisation is due to childbirth results in discrimination by association on the basis of gender. The court understood that the case could not be fully categorised as direct or indirect discrimination, concluding that discrimination by association had occurred since the harm was suffered by someone other than the person who was the subject of the underlying event which produced the discrimination.

2. DETERMINATION OF REMUNERATION ITEMS TO BE INCLUDED IN employees’ holiday PAY

Judgment of the Labour Chamber of the Spanish Supreme Court of 18 June 2020

The Supreme Court has ruled that the remuneration of employees’ annual leave must comprise the employees’ “normal remuneration”. In this particular case, the Supreme Court determined that annual leave remuneration must include the following items: amounts paid to training staff for mentoring, on-site or off-site on-call weeks of IT staff, the on-call supplement and the Saturday, Sunday and holiday bonus received by the employee during six of the eleven months preceding the annual leave.

3. NOT INCLUDING PART OF an employee’s SALARY in their PAYslip entitles them to terminate their employment contract and to receive severance compensation

Judgment of the Labour Chamber of the Spanish Supreme Court of 18 June 2020

The Supreme Court has found that the continued failure to reflect a significant part of an employee’s salary in their payslip – and as a result, not paying social security contributions for that salary – qualifies as a serious breach of the employer’s obligations. This circumstance justifies the termination of the employment contract by the employee, with the right to receive the severance compensation for unfair dismissal in accordance with article 50 of the Statute of Workers.

4. THE preference for remote WORKING eSTABLISHED by ARTICLE 16 RDL 8/2020 DOES NOT preclude the APPLication of temporary lay-off MEASURES

Judgment of the Labour Chamber of the Spanish National Court of 29 June 2020

The Spanish National Court has ruled that the preference for remote working established by article 16 of Royal Decree Law 8/2020 of 17 March on urgent and extraordinary measures to address the economic and social impact of COVID-19 does not preclude an employer from adopting temporary lay-off measures. This is because the preference for remote working is a health measure aimed at preventing the spread of the disease, while temporary lay-off measures solve the problem of having an excess of staff in relation to existing production needs.

5. THE VOLUNTARY resignation OF An employee faced with being reported to the police by her employer FOR a theft COMMITTED IN THE WORKPLACE does not vitiate her consent to resign

Judgment of the Labour Chamber of High Court of Justice of Catalonia of 11 December 2019

The High Court of Justice of Catalonia has ruled that for the conduct of a company to qualify as a threat or intimidation, that conduct must be in some way unlawful or illegal. In this case the company, upon discovering that an employee had committed thefts on its premises, offered her the option of resigning or being dismissed on disciplinary grounds and reported to the police. The court found that there was no threat or intimidation in informing the employee of these options and that this was simply the lawful and non-abusive exercise of a right by the company.

6. THE SPANISH DATA PROTECTION AGENCY IS NOT COMPETENT TO hear privacy cLAIMS IN THE context of the USE OF it DEVICES IN THE WORKplace

Resolution of the Spanish Data Protection Agency in proceeding no. E/10250/2019

The Spanish Data Protection Agency has determined that it lacks competence with respect to the claim of an employee against her employer for accessing her corporate email account without previously informing her of the company policy on use of IT tools. The employee claimed that the employer had accessed personal emails that she had sent from her work account. The Agency understood that this was a matter of digital rights relating to privacy and the use of digital devices in the workplace and not to data protection, concluding that it had no jurisdiction whatsoever in the matter.

 
   
 

In case of any doubts or comments, please do not hesitate to contact

           
 

Mario Barros
mario.barros@uria.com


 

Juan Reyes
juan.reyes@uria.com

 

Ana Alos
ana.alos@uria.com

           
 

Jorge Gorostegui
jorge.gorostegui@uria.com


 

Raúl Boo
raul.boo@uria.com

 

Jesús R. Mercader
jesus.mercader@uria.com

 
     
 

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

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