November 2021





1. A retroactive ERTE on force majeure grounds cannot be admitted when it affects employees reinstated after a collective dismissal

The Supreme Court has ruled on a case in which a company had made the majority of its employees redundant only for a court to rule that the measure was null and void and order the company to readmit them and pay them back pay. The company instead opted to temporarily lay off the employees on force majeure grounds (ERTE) with retroactive effect in order to avoid paying them the back pay. The Supreme Court held that this fraudulent attempt to avoid complying with the judgment on the collective redundancy meant the company could not argue that there were force majeure grounds for the temporary lay-off.

2. Spanish courts have jurisdiction to rule on the legality of the dismissal of an employee who never worked in Spain

The Supreme Court has examined the international jurisdiction of the Spanish courts in accordance with article 25.1 of the Judiciary Law and found them to be competent to hear an unfair dismissal claim of a Venezuelan employee whose employment contract was signed in Spain. This, despite the fact that the employer at the time of the dismissal was not Spanish and the employee had never worked in Spain.

3. Meal vouchers are not considered salary even if they are recorded on a payslip

The Supreme Court has held that meal vouchers are not considered salary but rather compensation and therefore employees are not entitled to receive them while they are on temporary incapacity leave or any other period of time not worked.

4. The COVID-19 crisis does not justify the substantial retroactive modification of variable remuneration

The National Court has held that once the conditions for the accrual of annual variable remuneration for 2020 have been fulfilled, the employer cannot then alter them arguing a sudden change in circumstances (in this case, the COVID-19 pandemic) and retroactively deprive employees of a right that they have already acquired.

5. The workplace is the basic electoral unit and this cannot be altered by a CBA

The National Court has declared null and void an article in a collective bargaining agreement that established that there would be a single electoral roll of employees in each workplace, even if employees of various companies of the same group worked in the same workplace. The court interpreted the wording “company or workplace” in articles 62 and 63 of the Statute of Workers as not referring to two alternatives but rather to the workplace of a single company, and therefore in circumstances such as this one elections must be held for each company operating in each workplace, despite them being part of the same group.

6. Snack break not conditional on activity levels in a company

The National Court has held that the right to take a short break during the normal working day (commonly referred to as a snack break or “pausa del bocadillo”) is a right that belongs exclusively to the employee and which can only be enjoyed by the employee, and therefore it cannot be made dependent on how busy the company is (unless the parties have expressly agreed otherwise).


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


Mario Barros


Juan Reyes


Ana Alos


Raúl Boo


Jesús R. Mercader



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