April 2011



 1. Immigration Regulation

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.

 2. Contract termination by an employee. Absence from work

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.

 3. Back pay awarded after dismissal appeal hearings

The Supreme Court confirms the correct method of calculating back pay awarded after dismissal appeal hearings.

 4. Employers monitoring the usage of IT resources

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.

 5. Reconciliation of work and family life. Adjustment of the length and distribution of the working day

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.

 6. Data protection

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