December 2020





1. national collective bargaining agreements can establish additional paid leave for female employees for pregnancy-related reasons

The Court of Justice of the European Union has ruled that a national collective bargaining agreement can provide further leave in addition to statutory maternity and paternity leave. This extra leave can apply exclusively to females as long as it is aimed at protecting pregnant employees or maternity.

2. 90-day reference period for collective redundancies can be before and after the contested dismissal

The Court of Justice of the European Union has established new rules for calculating the 90-day period in collective redundancies. The Court has rejected the notion of considering only the 90 days prior to the dismissal or the 90 days following the contested dismissal. It has interpreted that the period consists of any 90-day period in which the individual contested dismissal has occurred, regardless of whether this period is prior or subsequent, or partially prior and partially subsequent, to the individual dismissal.

3. unequal treatment of the duration of rest periods after on-call shifts declared discriminatory since the reduced working hours had no impact on the duration of the on-call shift

The Constitutional Court has held that the reduction of the rest period after on-call shifts of an employee who had reduced her working hours is sex discrimination. The claimant’s reduced working hours had no impact on the duration of each of her on-call shifts, but only on the annual number of her on-call shifts. On this basis, the Court declared that there was no reason to reduce her rest period after each on-call shift.  

4. employee who voluntarily resigns is not entitled to annual bonus

The Supreme Court has confirmed that a company does not have to pay variable remuneration to an employee who voluntarily terminated his contract before 31 December as this was validly established as the accrual date in the variable remuneration agreement. The employee’s resignation in October meant that he was not entitled to receive the proportional part of the bonus that he would have been entitled to on that date because he had not complied with the requirement of being a company employee on 31 December.

5. failure to submit certain documents and limitation of a witness statement does not lead to the nullity of a collective redundancy

The Supreme Court has rejected the legal and material grounds claimed by a trade union against a collective redundancy justified on organisational and production grounds that ended with an agreement. Limiting the questions put to a witness and the failure to provide certain documents does not result in the annulment of proceedings. In addition, the redundancy itself cannot be deemed null and void due to bad faith in the negotiation period simply because the company did not provide certain documents.

6. supreme court declares a quarterly bonus plan null and void due to sex DISCRIMINATION

The Supreme Court has rejected the wording of a company policy on variable remuneration  conditions because it discourages men from taking paternity leave, which in turn perpetuates the notion that women are solely responsible for housework and childcare. Although maternity and paternity leave protect different legal interests, this does not allow for different treatment that directly discriminates against fathers and indirectly discriminates against the right to a work-life balance for men and women.

7. final judgment of another dismissal case can be relied upon to modify proven facts in dismissal proceedings

The Supreme Court has agreed to the modification of proven facts on appeal on the basis of a new final judgment regarding the dismissal of a claimant’s colleague. After analysing the documents that by law may be relied upon to change proven facts and the requirements that must be met, the Supreme Court has confirmed that this was a final judgment that had been notified after the trial date and that it included facts relevant to the case at hand. 

8. wrongful dismissal DECLARED UNFAIR AND NOT NULL and void

The High Court of Andalusia has declared a wrongful dismissal to be unfair rather than null and void because it held that the legal consequence of the company infringing the contract should be a severance payment and not reinstatement.

9. collective redundancy following a TEMPORARY LAY-OFF deemed null and void due to the failure to submit new evidence justifying the REDUNDANCY

The High Court of the Principality of Asturias has declared a collective redundancy that was implemented after a temporary lay-off owing to force majeure to be null and void. The Court upheld the trade union’s claim and confirmed that the collective redundancy must be declared null because the company did not put forward new grounds to justify the redundancy and the grounds for the temporary lay-off had not changed. Furthermore, the company did not provide the employee representative with the mandatory documentation within the consultation period.

10. employee entitled to delay annual leave coinciding with lockdown

An Employment Tribunal in Melilla has upheld an employee’s request to delay her annual leave until after lockdown owing to the COVID-19 pandemic. Given that the company did not reject the employee’s request and did not suggest alternatives, the Court acknowledged the employee’s right to take her annual leave in the new period requested, particularly in light of the fact that the company gave its employees recoverable paid leave during the period the employee was initially supposed to have taken her annual leave.


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


Mario Barros


Juan Reyes


Ana Alos


Jorge Gorostegui


Raúl Boo


Jesús R. Mercader


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