1. Annual leave must be taken into account when calculating overtime work hours threshold
The Court of Justice of the European Union has ruled on employers’ methods for calculating whether the overtime work hours threshold had been exceeded. It found that, for the purposes of receiving a certain salary supplement, employers must count and consider “the hours corresponding to the period of paid annual leave” as hours actually worked.
2. A temporary employment agency unlawfully assigning workers to carry out structural duties in the user company is a very serious infringement
A temporary employment agency assigning workers for more than three years to carry out structural duties in the user company is a very serious infringement of article 8.2 of Royal Legislative Decree 5/2000 of 4 August approving the revised text of the Employment Infringements and Penalties Law, as it constitutes an illegal assignment of workers.
3. Employees on reduced hours not entitled to the same bonus amount as full-time employees
Employees on reduced hours must adapt their objectives to their actual working hours, but they are not entitled to receive the same bonus amount as full-time employees.
4. Safety representatives’ special rights do not extend to members of the health and safety committee
The Supreme Court has ruled that safety representatives’ special rights in the event of their dismissal, specifically, their right to have the case examined and give their view on the events (expediente contradictorio) and to choose whether to be reinstated or terminate the employment relationship, do not extend to members of a company’s health and safety committee.
5. The contract-suspension period due to a temporary lay-off is not effective working time for calculating working-day adjustments
The Supreme Court has declared that the period during which contracts are suspended or working hours are reduced as a consequence of a temporary lay-off are not effective working time for calculating working-day adjustments in line with collective bargaining agreement limits. The purpose of these adjustments is to compensate employees who provide services throughout the calendar year, not those who do not provide services during certain periods, regardless of why the contract has been suspended or the working hours reduced.
6. An irregular distribution of working hours during the pandemic does not constitute a substantial modification of working conditions
The Supreme Court has ruled that adopting an irregular distribution of working hours does not constitute a substantial modification of working conditions when doing so is justified by an unforeseeable health situation and the company and the employee representatives agree to it.
7. Employees bear the burden of proving that a company has employee representatives in objective dismissal cases
The Supreme Court has ruled that, to verify that the obligation to notify the employee representatives of an objective dismissal has been fulfilled, the employee bears the burden of proving that the company has employee representatives when the company claims to be unaware of their existence.
8. Even if an employer has previously tolerated an employee providing services for another company, it may dismiss the employee when that company becomes a direct competitor
The Supreme Court has analysed the doctrine of estoppel and ruled that a company that knows that an employee is managing a company with the same activity and allows them to do so, may subsequently dismiss that employee if the situation changes and gives rise to unfair competition.
9. Holidays cannot be offset against time off for personal reasons
The Supreme Court has confirmed that holidays cannot be offset against time off for personal reasons as the concepts are not the same and their purposes are different. The Supreme Court ruled that compensation and absorption only applies to similar concepts with the same purpose.