Royal Decree 557/2011 of 20 April approves the Regulation of Basic
Law 4/2000 on the rights, freedoms and social integration of foreigners
in Spain pursuant to the amendments introduced by Basic Law 4/2000. This
regulation replaces the previous one approved by Royal Decree 2393/2004.
The Supreme Court sets out the extraordinary cases in which absence
from work does not constitute the resignation of an employee who has
requested the termination of his employment contract due to a breach of
contract by his employer.
The Supreme Court confirms the correct method of calculating back pay
awarded after dismissal appeal hearings.
The Supreme Court reaffirms the interpretation laid down in its
landmark decision of 26 September 2007 concerning employers monitoring
their employees’ usage of IT resources.
The Constitutional Court analyses, in two judgments of the same date,
the scope and correct application of workers’ rights to adjust the
length and distribution of their working day when they have not sought a
reduction.
The Spanish Data Protection Agency holds that using an employee’s
Internet browser history to monitor work and, ultimately, to impose
disciplinary measures without providing notification of that possibility,
constitutes a violation of an individual’s fundamental right to the
protection of personal data.
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1. Immigration Regulation
Royal Decree 557/2011 of 20 April approves the Regulation of
Basic Law 4/2000 on the rights and freedoms and social integration of
foreigners in Spain pursuant to the amendments introduced by Basic Law
2/2009
As set out in the Preamble, the decision to approve a new immigration
regulation is based on the following reasons: (i) the reform of
migratory policy according to Law 2/2009; (ii) improving existing
procedures in this area; (iii) incorporating the experience of the
immigration services; (iv) involving the largest number of political,
social forces and NGOs; (v) consolidating a model based on regularity
and linked to the labour market; (vi) fostering integration and the
equality of rights and duties; (vii) strengthening collaboration with
regional and local authorities; (viii) fostering and ensuring the
mobility and voluntary return of immigrants; (ix) implementing
directives transposed by Law 4/2000 and; (x) making immigration
procedures more rigorous.
The most important modifications of each title are set out below.
Title I regulates the re-entry permit further by specifying
the circumstances of custody at borders.
Title II concerns airport traffic and the amendments
introduced pursuant to European law and, in particular, the Community
Code on Visas. Title III also introduces amendments in line with
European law.
Title IV relates to the different types of temporary residence
status. With regard to labour law, Title IV regulates the economic,
material and personal means to be verified by the employer and the
effectiveness of the authorisation to be registered with Social Security.
A new reason for the refusal of temporary residence and work permits
is introduced for employees. The application will be refused if the
employer is found to be in breach of article 53.2) of Law 4/2000 at any
stage within the three years preceding the application.
Furthermore, Chapter IV on "Temporary residence permit for
research work" and Chapter V "Temporary residence and work permit
for highly-qualified professionals holding an EU blue card"
transpose the Directives on researchers and the Directive on highly-qualified
professionals or EU Blue Card professionals.
Title V deals with residence permits for exceptional
circumstances, and reduces the length of time required for an
“employment tie” to exist. It sets out regulations for victims of
domestic violence (by providing them provisional residence and work
permits) and extends these to victims of human trafficking.
Title VI establishes two categories of long-term residence
permits; long-term and long-term EU. The aim of these permits is to
facilitate the resident’s mobility in other Member States.
Title VII on removing the need for residence and work permits,
includes new categories (i.e. for research, highly-qualified
professionals, victims of trafficking and long-term residence).
Title VIII regulates the collective management of hiring in
countries of origin which replaces the previous system. It further
establishes the continued participation of the Tripartite Labour
Committee.
Title IX develops the new "procedure to authorise the entry,
residence and work of foreigners in Spain whose profession meets the
country’s economic, social or labour demands, or who intend to undertake
research or development or educational work which requires highly-qualified
personnel, or to carry out performances of special cultural interest”.
This procedure will be applicable to employers established in Spain
who require the incorporation of the following type of non-EU workers:
(i) managers or highly-qualified personnel, provided the company meets
some of the requisites mentioned in this title; (ii) highly-qualified
technicians and scientists hired by the State, the autonomous
communities, local authorities or agencies dedicated to research or
entities in which the aforementioned bodies have an interest; (iii)
lecturers hired by a Spanish university; (iv) highly-qualified
technicians or scientists to carry out research or development in
universities and prestigious R&D centres, or in research and development
units of companies in Spain; (v) artists or groups of internationally
renowned artists, or which are involved in an international art project
representing a significant cultural or social contribution, and also,
the personnel needed to ensure the performance of these activities and;
(vi) management or highly-qualified personnel who form part of a
business project that falls within the scope of this title.
Title X improves the current regulations on cross-border
workers, setting out the requisites to obtain the appropriate permits.
Title XI introduces several improvements in relation to
accompanied and unaccompanied foreign children. It establishes detailed
regulations on the repatriation of children, which the public prosecutor
is actively involved in.
Title XII concerns the change in the situation of foreigners
in Spain and takes into account the new categories.
Title XIII refers to foreigners’ documentation. It sets out
the terms for granting foreign identity cards and the new regulations
regarding the Registry of Unaccompanied Foreign Minors.
Title XIV concerns infractions regarding immigration and
sanctions arising from the legal reform. In particular, Chapter IV
regulates the infractions and penalties regarding social order and the
supervision of labour.
Finally, Title XV refers to immigration offices and migration
centres, confirming their functional dependence.
Moreover, the regulation contains twenty-five additional provisions,
including the provision that holders of fixed-term work permits and
students, do not need to make social security contributions for
unemployment benefits.
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2. Contract termination by an employee. Absence from
work
Judgment of the Labour Chamber of the Supreme Court dated 17
January 2011
In this case, an employee exercised his right to request the
termination of his employment relationship according to article 50.1.b)
of the Statute of Workers (“SW”), on the basis that the company
had failed to pay him his salary and bonuses for the last six months.
After the conciliation hearing, and as he had announced during the
meeting, the employee stopped attending work.
The Supreme Court (“SC”) stated that in exceptional cases,
when the termination of an employment contract is requested due to a
breach by an employer, the employee’s absence from work does not affect
the validity of his employment relationship. In other words, it does not
imply the employee’s resignation. This also applies to cases when going
to work becomes too arduous, dangerous or humiliating for an employee.
The SC held that the lack of remuneration for six months affected,
not only the employee’s dignity, but also his livelihood, thus his
absence from work was completely justified. Moreover, despite the
employee’s absence from work, the company was fully aware of the fact
that the employee did not want to resign as he had made clear his wish
to continue working for the company.
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3. Back pay awarded after dismissal appeal hearings
Judgment of the Labour Chamber of the Supreme Court dated 24
January 2011
According to this judgment, which reaffirms the doctrine of the
Labour Chamber of the SC, the back pay awarded after dismissal appeal
hearings must be calculated by dividing the employee’s gross annual
salary by 365 calendar days (366 if it is a leap year). It is therefore
incorrect to carry out the calculation based on each month being 30 days
long.
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4. Employers monitoring the usage of IT resources
Judgment of the Labour Chamber of the Supreme Court dated 8 March
2011
In this case, a company had conducted an internal audit to check its
security system and the appropriate usage of the IT resources provided
to its employees. The audit verified that the claimant (i.e., the
employee) had repeatedly accessed websites during the working day that
bore no relation to his work. He was therefore dismissed for
disciplinary reasons in accordance with article 54.2.d SW and the
applicable collective bargaining agreement.
According to the SC, which made reference to the landmark decision of
26 September 2007, employers monitoring the usage of their IT resources
must comply with the following requirements:
1. They must respect employees’ dignity.
2. They must establish the terms of use of these resources in advance
(with total or partial prohibitions).
3. They must inform employees that their use of the IT resources will
be monitored, and of the measures and means that will be taken to ensure
the appropriate use of the resources. Moreover, other preventive
measures may be implemented, such as blocking certain websites.
4. Monitoring and controls must be conducted on a general basis, as
opposed to focusing on one or various employees.
These limitations of the employers’ supervisory powers, which are
regulated in article 20.3 SW arise from employees’ fundamental rights to
privacy, privacy of communications, and freedom of expression. According
to the case law of the Constitutional Court (“CC”), these rights
are not relinquished upon the execution of an employment contract.
Nevertheless, employees must adapt to the requirements of the
organisation they work for. The SC has established guidelines for
employers to exercise their right to supervise, monitor and control,
without violating the employees’ fundamental rights.
The decision also refers to the scope of protection of these rights.
Pursuant to the resolutions of the European Court of Human Rights, the
protection includes: (i) telephone calls and e-mails (based on the
constitutional right to privacy of communications); (ii) personal files
(right to privacy) and; (iii) files on browsing history, as they could
contain sensitive data.
The SC upheld the decision of the first instance court that declared
the dismissal unfair and the evidence obtained unlawful. This decision
was based on the fact that the company had not established the rules on
the use of its IT resources in advance, and had not informed the
employees about the possibility of supervisory measures being taken, nor
the means through which they would be exercised.
The consequences of actions such as these carried out by employers in
the context of data protection are analysed in section 6 of this
Newsletter.
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5. Reconciliation of work and family life.
Adjustment of the length and distribution of the working day
Judgments of the First and Second Chambers of the Constitutional
Court, dated 14 March 2011
Both judgments rule on appeals lodged by workers who requested the
adjustment of the length and distribution of their working day. Neither
of the workers had asked to reduce his/her working day, with the
consequent salary reduction, under article 37.5 SW.
In the first appeal, judgment 24/2011, the worker appealed the
decision of her company not to accept her request to be permanently
assigned to the morning shift. The second, judgment 26/2011, examined a
similar case in which a worker requested that he be permanently assigned
to the night shift, a request that his employer denied. In both cases
the companies’ decisions were upheld at first instance and on appeal.
The CC overrules the first appeal and upholds the second one on the
following grounds.
Firstly, the CC’s judgment 3/2007 of 15 January stipulates that the
constitutional aspects of measures aimed at facilitating the
reconciliation of the work and family life of workers must prevail and
steer the resolution of doubts as to interpretation. This means that
when the right to non-discrimination for family circumstances, ex
article 14 of the Spanish Constitution (“SC”), or the mandate to
protect family and children (article 39 SC), is affected, the courts
must assess the specific personal and family circumstances of the worker
and not judge the case in strict legal terms.
Moreover, the right to adapt the length and distribution of the
working day is expressly governed by article 34.8 SW. This provision
makes changes requested to the working day (without reducing working
time or salary) conditional on the existence of a collective or
individual agreement.
Consequently, a refusal to adjust the length and distribution of the
working day will be valid when the interests at stake and their
constitutional aspects have been weighed up (as long as there is no
collective or individual agreement in this regard). This is why the CC
overrules the first appeal (as the issue at hand was correctly weighed
up) and upholds the second (which was not weighed up).
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6. Data protection
Resolution R/02615/2010 of the Spanish Data Protection Agency
dated 30 December
The proceedings were based on the disciplinary dismissal of an
employee for his non-professional use of the Internet on a company
computer. Please see section 4 of this Newsletter for a summary of the
challenge of the dismissal carried out simultaneously with these
proceedings.
The Spanish Data Protection Agency (“SDPA”) stated that the
Internet browser history of an identified or identifiable person that
allows the evaluation of the person’s browser history and affects his/her
rights and interests implies that such information must be characterised
as personal data.
The SDPA also analysed whether or not the conduct of the company had
infringed the employee’s right to the protection of personal data. In
the pivotal judgment of the SC issued on 26 September 2007 involving a
similar case, the SC held that a violation had occurred on the basis
that the company had not established rules for the use of its IT
resources, that the employees had not been informed of the possibility
that their use of the resources would be monitored, how this would be
done and the measures taken to ensure the correct use of the resources.
The SDPA therefore held that the company’s accessing of the computer
provided to the claimant infringed his right to privacy and violated
data protection provisions. The conduct was deemed a serious
infringement under article 45.2 of Basic Law on Data Protection and the
company was ordered to pay a fine of EUR 60,101.21. The SDPA determined
that none of the "extenuating circumstances" established in paragraph 5
of article 45 were applicable (e.g., culpability, illegality, take-over
merger, etc.) given that the company was aware that the employee’s usage
of the IT resources had been monitored, without the claimant’s knowledge
or receipt of prior notification on the corresponding rules and controls.
Nevertheless, the SDPA failed to determine that the company had acted
intentionally and, in view of the limited number of controls carried
out, imposed the minimum fine required for serious infringements.
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