October 2010
LABOUR LAW
1. An unfair dismissal during an
extended leave of absence does not entitle the employee to claim back
pay
The Supreme Court held that an employee
who is unfairly dismissed while on leave of absence is not entitled to
back pay, because during that period he was not being paid by the
company. (More information)
2. Nullity of
minimum services during a strike on the grounds of lack of justification
The Supreme Court held that any
decision made by the public authorities establishing a minimum level of
essential services in a strike must be properly justified.
(More information)
3. Restrictions on
the special work permit for highly qualified foreign workers
In its judgment of 14 May 2010, the
Supreme Court established the need to clearly specify which highly
qualified foreign workers can follow a special work permit procedure.
(More information)
4. No right to
compensation for acts against the freedom of association if the basis
for damages is not duly evidenced
The Court held that it was
inappropriate to compensate workers after an illegal lockout, because of
the lack of evidence in their petition of the basis of their claim for
damages. (More information)
5. A bonus paid to
workers creates a right even if the payment is not expressly established
in the employment contract
The National Court holds that any bonus
paid by a company, whether or not expressly established in the
employment contract, creates a right for the workers and that, therefore,
any modification must be made in accordance with the special procedures
established in Spanish law. (More information)
6. Validity of an
employee’s decision to withdraw her resignation
An employee’s withdrawal of her
resignation is valid if it is communicated during the notice period. The
company’s approval is not required. (More information)
1.
An unfair dismissal during an extended leave of absence does not entitle
the employee to claim back pay
Judgment of the Labour Chamber of
the Supreme Court dated 12 July 2010
In this judgment, the Supreme Court
held that employees are not entitled to back pay in the event of an
unfair dismissal during a voluntary leave of absence.
An employee who worked for the Spanish
National Television was dismissed because he was working for the
competition while on leave of absence. The High Court of Justice of
Madrid declared this dismissal unfair and ordered the company to pay the
employee back pay, in addition to the statutory severance payment for
unfair dismissal.
The Supreme Court held that, in these
cases, the payment of back pay is unlawful. When an employee is on leave,
he or she does not receive a wage, therefore payment of back pay is not
compulsory if the employee is dismissed, even though the dismissal is
subsequently declared unfair.
2.
Nullity of minimum services during a strike on the grounds of lack of
justification
Judgment of the Contentious-Administrative
Chamber of the Supreme Court dated 24 May 2010
The case involved a decision by the
Regional Government of Valencia establishing a minimum 66% level of
service in a strike called by the city’s public transport service. The
decision was challenged on the grounds of it being abusive and against
the fundamental right to strike provided in article 28.2 of the Spanish
Constitution.
The judgment of the High Court of
Justice of Valencia stated that it was legal for the public authorities
to establish minimum levels of public services, further adding that
where the strike affected essential services, there had to be a balance
between the right to strike and the inconvenience caused to users.
However, the appeal holding of the
Contentious-Administrative Chamber of the Supreme Court established that
in these types of cases it was compulsory to justify the reason these
services were considered essential, and the criteria used to determine
the minimum level of services.
In this case, the Regional Government
of Valencia had failed to justify the reason for fixing the essential
services at 66%. As a result of this failure, the Supreme Court held
that the decisions taken regarding the minimum services had not been
based on valid legal grounds, but were generic in nature, and thus
invalid as they violated the fundamental right to strike provided in the
Spanish Constitution.
3.
Restrictions on the special work permit for highly qualified foreign
workers
Judgment of the Administrative
Chamber of the Supreme Court dated 14 May 2010
This judgment was issued in response to
a dispute arising following the approval of the Council of Ministers’
Agreement dated 16 February 2007, which established a different permit
application procedure for foreigners whose activities are of special
economic, social or labour interest, to enter, reside and work in Spain.
It was alleged that the Council of
Ministers had exceeded its authority by creating a work permit procedure
that differed from that established in Basic Law 4/2000 on the rights
and freedoms of foreigners in Spain. Basic Law 4/2000 states that
foreign workers will receive work permits on a case-by-case basis in
line with the national employment situation at that particular time.
However, Basic Law 4/2000 also states
that managers, scientists or highly qualified artists are exempt from
this procedure. These groups of workers are precisely those included in
the Council of Ministers’ Agreement and the Supreme Court considered the
Council of Ministers competent to create a special procedure for such
groups of workers. However, the Supreme Court held that provision of the
Council of Minister’s Agreement, allowing other similar workers to
provide their services by following the same special work permit
procedure, if the government considers this appropriate, is invalid as
it is unclear exactly which group of workers it applies to and it does
not comply with Basic Law 4/2000.
4.
No right to compensation for acts against the freedom of association if
the basis for damages is not duly evidenced
Judgment of the Labour Chamber of
the Supreme Court dated 12 May 2010
This case addressed the issue of
damages arising after a company’s decision to declare a lockout during
days when workers had called partial strikes. The Superior Court of the
Basque Country declared this decision unlawful and ordered the company
to indemnify its employees on the basis that there had been a violation
of the fundamental right to strike.
This decision was appealed by the
company in the Supreme Court. The company argued that the employees
provided no facts in their petition or in the proceedings on the basis
of which a compensation payment could be justified.
The Supreme Court held that an
infringement of the right to strike is not sufficient to order a company
to pay compensation to its employees. The claimant must include evidence
in the petition setting out the basis of the compensation sought.
5. A
bonus paid to workers creates a right even if the payment is not
expressly established in the employment contract
Judgment of the Labour Chamber of
the National Court dated 23 September 2010
The National Court addresses a
situation in which workers were paid a variable bonus based on a fixed
percentage of gross annual salary (i.e., 15%). The payment was in some
cases recognised in the employment contract and, in others, was granted
although not explicitly stated in the contract or a separate document. A
claim was brought by employees after the company unilaterally reduced
the amount of the bonus without consulting the employee representatives.
The National Court held that the bonus
created a right for the workers derived from their labour relationship
and which could only be modified in accordance with article 41 of the
Statue of Workers. The National Court stated that article 41 must be
fulfilled whether or not the bonus is established in the contract, a
separate document or by company practice.
6.
Validity of an employee’s decision to withdraw her resignation
Judgment of the Labour Chamber of
the High Court of Madrid dated 23 July 2010
In this case, an employee informed her
employer of her decision to resign from her job. Her resignation was to
take effect after the notice period of fifteen days. During this time,
the employee changed her mind and sought to withdraw her resignation,
but when the notice period ended, the company terminated her employment.
The first instance court held that the
employee’s decision to withdraw her resignation could only have taken
effect if the company had accepted the withdrawal. However, the High
Court of Madrid overturned that decision on the grounds that the
employment relationship was still in force at the end of the notice
period. In the High Court’s opinion, the decision of the worker to
withdraw her own resignation during the notice period is valid and,
therefore, she could not be dismissed after that period without cause.
Moreover, the High Court of Madrid stated that the company’s approval of
the withdrawal was not required for it to be lawful.
As a result, the High Court of Madrid
held that the company had unfairly dismissed the employee.
