The Spanish Government has approved Royal Decree 7/2011 of 10 June on
urgent measures to reform collective bargaining. The Royal Decree aims
to develop the regulation of collective bargaining agreements, to make
the procedures and content of the negotiation more dynamic and swift and,
especially, to bring collective bargaining in line with the recent and
changing business realities, including the new regulations on legitimacy
and the internally negotiated flexibility with employee representatives.
Royal Decree 801/2011 of 10 June approves the regulations on
collective dismissal procedures and public authority functions regarding
collective relocations, with the aim of adapting this regulation to Law
35/2010 of 17 September on urgent measures to reform the labour market.
Royal Decree 772/2011 of 3 June introduces several amendments to the
processing and resolution of administrative proceedings for social order
infractions.
Law 14/2011 of 1 June on science, technology and innovation creates
the framework to promote scientific and technological research and its
instruments of general coordination. The main goal is to promote
investigation, experimental development and innovation as elements on
which to base sustainable economic development and social welfare.
Approval of the equal opportunities plan for men and women in central
authorities.
This protocol provides a definition of workplace harassment. The aim
of the protocol is to establish a procedure for handling situations that
could constitute workplace harassment in the central authorities.
Technical Criterion 89/2011 of the Ministry of Labour and Social
Security, which revoked Criterion 61/2008 of 28 July on directors’
liability for social security contributions.
The Resolution issued by the Salary Guarantee Fund on 3 June 2011
modifies the Order of 29 June 1994 on the obligation of the Salary
Guarantee Fund to pay 40 per cent compensation in cases of employment
contracts terminated for economic, technical, organisational or
production causes in companies with less than 25 employees.
The Resolution of the Salary Guarantee Fund dated 3 June 2011 allows
the provision under the third additional provision of Law 35/2010 of 17
September on urgent measures to reform the labour market to be applied,
therefore permitting the Salary Guarantee Fund to assume a portion of
the severance payment on behalf of the company.
In its judgment of 19 May 2011, the Constitutional Court held that
article 14 of the Constitution is not infringed when a father is refused
maternity benefit because the mother is not a worker registered with the
Social Security.
The Supreme Court confirms the employer’s right to be notified of the
exercise of its employees’ right to strike.
The Supreme Court has held that a non-competition agreement is null
when the company has the option to decide if it is enforceable or not.
The Labour Chamber of the Supreme Court held that the obligation to
settle back pay includes the payment of the corresponding social
security contributions.
The Supreme Court has once again held that, in line with article 83.1
of the Statute of Workers, the scope of application of a collective
agreements is that determined by its parties.
The court held that the notification of a sanction must contain the
date on which the sanction will come into force in order to afford the
worker greater certainty and to warn him of the expiry date of the term
to appeal the imposition of the sanction.
The employer is entitled to unilaterally change the non-essential
conditions of an employee’s contract (ius variand) as part of
its organisational and managerial faculties and make the worker perform
different functions than those carried out prior to his dismissal.
The Contentious-Administrative Chamber of the High Court of Justice
of Madrid held that all the years worked for the group must be taken
into account when applying the exempt amount of the severance payment
for a worker’s dismissal. Group companies are therefore considered to be
a sole employer for such purposes.
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1. Collective
bargaining reform
Royal Decree-Law 7/2011 of 10 June on
urgent measures to reform collective bargaining
This Royal Decree-Law (“RDL”) introduces major
amendments to collective bargaining, chiefly:
In relation to the coexistence of different collective agreements,
the reform enhances the application of company-specific collective
agreements. The RDL establishes that in the absence of different rules
on the collective bargaining structure or coexisting collective
bargaining agreements in a national or regional collective bargaining
agreement, the regulations of a company-specific collective bargaining
agreement will take priority over an industry-specific collective
bargaining agreement in relation to matters such as base salary and
salary supplements, compensation for overtime, timetable and
distribution of working hours, professional classification system, etc.
Within a regional scope, collective bargaining agreements that are
divergent from national bargaining agreements can be negotiated.
Another substantial amendment concerns the minimum terms and
conditions of collective bargaining agreements. In this regard, a
minimum notice period for termination must be provided, which unless
otherwise established, will be three months. A maximum term to start
negotiations once the notice period for termination is provided must
also be included, which, unless otherwise established, will be fifteen
days. Moreover, a maximum negotiation term must be provided, which,
unless otherwise established, will be eight months for collective
bargaining agreements of under two years, and fourteen months for
collective bargaining agreements of over two years.
The role of the joint employer/employee committee is enhanced by
empowering it to adapt and amend certain aspects of collective
agreements.
In order to promote further internal flexibility, a percentage of
ordinary working time (five percent, unless otherwise agreed) will be
able to be distributed throughout the year.
Finally, the RDL provides the obligation to resort to arbitration if
the legitimate representatives in charge of negotiating the collective
agreement cannot reach a compromise during the negotiation period.
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2. Collective
dismissal procedure regulation
Royal Decree 801/2011 of 10 June approving
the regulations on collective dismissal procedures and public authority
functions regarding collective relocations
One of the aims of the Royal Decree (“RD”) is to
increase the documentation required to justify the reasonableness of the
number of terminations and the aim sought when the dismissals are based
on future losses. These documents will have to provide details of the
criterion on which this forecast is made. The volume and permanent or
temporary nature of the losses will also have to be evidenced in order
for the dismissals to be considered reasonable.
In relation to the collective dismissal package (plan de
acompañamiento social), the RD establishes that measures should be
implemented to avoid or reduce the effects of the dismissal procedure,
such as redeployment within the company or to another company in the
group, outplacement of workers through authorised firms, geographical or
functional mobility, promotion of self-employment or employment at
social economy entities, professional training or retraining initiatives
designed to serve the continuity of the business, etc.
Other relevant amendments include increasing the number of employee
representative groups that can participate in collective dismissal
procedures and limiting the consultation period with employee
representatives to a maximum of thirty days.
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3. Imposition of
administrative sanctions for social order infractions
Royal Decree 772/2011 of 3 June on the
processing and resolution of administrative disciplinary proceedings
for social order infractions
The Royal Decree introduces several amendments to the processing and
resolution of administrative proceedings for social order infractions.
The main innovations are that autonomous regions are now responsible for
designating the examining body in charge of the disciplinary proceedings;
it also regulates the processing and hearing of disciplinary proceedings
involving the central authorities; it clarifies the moment the time-limit
resumes in disciplinary proceedings when the case is passed on to the
public prosecutor; it improves the wording regarding recidivism and also
sets the maximum term to resolve claims.
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4. Promotion of
science, technology and innovation
Law 14/2011 of 1 June on science,
technology and innovation
This Law (the “Law”) aims to create a framework to
promote scientific and technological research.
The new Science, Technology and Innovation System will encompass
public and private bodies and comprise the central authorities and the
autonomous regions. In order to promote adequate and effective
communication among the different bodies, the central authorities’ areas
of responsibility are established to ensure the overall coordination of
scientific and technological research, providing regulations for the
system, with five main focal points in mind: the promotion of a
favourable environment for innovation, the encouragement of innovation
by the public sector, international projection, the reinforcement of
regional cooperation and human capital. The System is created to ensure
that all the agents in the system have access to global information
regarding the activities carried out.
It also regulates the general provisions applicable to all the
researchers, especially those with a labour relationship. Under this
section, the Law also sets out the rights and obligations for
researchers and establishes the criteria for research staff selection.
Moreover, it promotes researchers’ mobility in various ways, such as authorising
training internships in other prestigious centres or allowing the
provision of services in companies created or participated by the
entities in which the researchers carry out their work. The Law is a
step forward in that it reduces uncertainty regarding the employment
status of researchers and creates different contractual mechanisms,
including the “predoctoral contract” for researchers undertaking their
doctoral studies while doing research. For postdoctoral researchers, it
establishes a temporary contract of up to five years and, for
prestigious researchers, the contract for outstanding researchers.
Finally, from a human resources perspective, the Law provides a new
outline of scientific levels and fosters the involvement of foreign
researchers to access these levels.
In relation to fund raising, it promotes corporate investment through
legal procedures for cooperation by allowing collaboration agreements
between public and private agents. Furthermore, it encourages research
results being conveyed to the general public and making the following
subject to private law: incorporation contracts, collaboration
agreements to assess and disclose results, research services agreements
or those governing technical support. The State Agency for Research was
set up as the central authorities’ representative body for the public
financing.
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5. The equal
opportunities plan for men and women in central authorities
Resolution of 20 May 2011 of the Secretary
of State for the Civil Service in which the Agreement of the Council of
Ministers of 28 January 2011 was published, which approved the equal
opportunities plan for men and women in central authorities.
The equal opportunities plan for men and women in central authorities
is divided into four main areas: i) making a “diagnosis” in order to
discover the situation that previously existed and to analyse the
current principle of equality between men and women; ii) as part of the
main objectives, guaranteeing real and effective equality between men
and women in public sector employment and in their working conditions,
obtaining a fair representation between men and women, providing
training and creating awareness of equal treatment and equal
opportunities, setting up an action protocol for sexual harassment and
gender harassment, including a prevention and action procedure; iii)
recommending measures such as access to employment, equality in career
advancement, the organisation of working time, sharing responsibility
and work-life balance policies, an action protocol for sexual harassment
or harassment based on gender and salary; and iv) the plan will be
monitored by the Technical Advisory Board for Equality.
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6. Protocol
regulating workplace harassment in the central authorities
Resolution of 5 May 2011 of the Secretary
of State for the Civil Service in which the Agreement of the General
Negotiation Committee of the central authorities of 6 April 2011 was
published on the Action Protocol against harassment in the central
authorities
Among the main aspects, this protocol provides a definition of
workplace harassment. The protocol only refers to “psychological
harassment”, which implies exposure to intense, frequent psychological
abuse over a prolonged period, and which is directed at one person or
more by others in a superior position, either hierarchically or
psychologically, with the intention of creating a hostile or humiliating
environment, thus disturbing the working life of the victim/s. The
protocol also defines conduct which is not to be considered
psychological harassment.
The aim of the protocol is to establish a procedure for handling
situations that could constitute workplace harassment in the central
authorities.
Within two months of its approval, the protocol must be implemented
in the workplaces of central authorities.
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7. Directors’
liability for social security contributions
Technical Criterion 89/2011 of the Ministry
of Labour and Social Security on the liability of company directors for
social security contributions
This new Criterion takes into account Royal Legislative Decree 1/2010
of 2 June, which approves the consolidated text of the 2010 Companies
Law (Ley de Sociedades de Capital or “CL”) and states
that company directors only become liable for company debts if they have
failed to carry out the obligations established in articles 365 and 366
of the CL once the company’s legal cause of dissolution has been proved.
The obligations are: (i) calling a general meeting in order to adopt the
dissolution agreement, or insolvency proceedings if the company is also
insolvent, or (ii) requesting the legal dissolution, or insolvency
proceedings if the company is insolvent, when the general meeting has
not been constituted or when the resolutions conflict with the
dissolution or the insolvency proceedings.
Moreover, the Criterion establishes that directors can be held liable
for their company’s entire debt if they fail to prove otherwise.
Directors hold the burden of proof unless it can be proved that the
obligations arose before the company’s legal cause of dissolution was
proved.
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8. Compensation
from the Salary Guarantee Fund for dismissals in companies with less
than 25 employees
Resolution of the Salary Guarantee Fund
dated 3 June 2011 regarding dismissals for economic, technical,
organisational or production causes in companies with less than 25
employees
The Resolution of the Salary Guarantee Fund (“SGF”)
modifies its Order of 29 June 1994 on the obligation to pay the 40 per
cent compensation involving cases of employment contracts terminated for
economic, technical, organisational or production causes in companies
with less than 25 employees. Among the main innovations, the request for
SGF benefits can be submitted by the employee or by the employer if the
latter had previously paid the worker 100 per cent of the compensation
established in article 53.1.b) of the Statute of Workers. The Resolution
also removes the requirement that documents submitted to other public
bodies be available to be accessed electronically by SGF under the
corresponding collaboration agreements.
Payment of the 40 per cent compensation is only available for the
termination of indefinite contracts executed before 18 June 2010.
Contracts executed after 18 June 2010 are discussed in the following
section.
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9. Compensation
from the Salary Guarantee Fund for indefinite contracts executed on or
after 18 June 2010
Resolution dated 3 June 2011 of the Salary
Guarantee Fund on the implementation of the third additional provision
of Law 35/2010 of 17 September on urgent measures to reform the labour
market
The third additional provision of Law 35/2010 of 17 September on
urgent measures to reform the labour market establishes that when an
indefinite contract (whether ordinary or one promoting the execution of
indefinite contracts) executed on or after 18 June 2010 is terminated
for one of the causes established in articles 51 and 52 of the Statute
of Workers (“SW”) or article 64 of Law 22/2003 of 9
July on insolvency, part of the compensation granted to the worker will
be repaid by the Salary Guarantee Fund to the employer. The exact amount
will be equivalent to eight days’ salary per year and periods of less
than one year will be paid pro rata according to the months worked.
The following requirements must be met in order to obtain the amount:
i) the terminated employment contract must be indefinite; ii) it must be
executed on or after 18 June 2010; iii) it must have a term of more than
one year; and iv) the termination of the contract must be due to one of
the causes established in articles 51 or 52 of the SW or article 64 of
Law 22/2003.
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10. Maternity
benefit. Right of the mother
Judgment 75/2011 of the Constitutional
Court dated 19 May 2011
In this judgment the Constitutional Court (“CC”)
examined a constitutional issue raised by Labour Court no.1 of Lerida
concerning article 48.4 of the SW. The labour court judge considered
that there was no reason why a father could not take the voluntary leave
of absence upon the birth of his child and receive the corresponding
maternity benefit during this period, something which is only possible
if the mother is working and registered in one of the social security
schemes. The position of the National Social Security Institute had been
to refuse to pay fathers the maternity benefit if the mother was not
working and registered.
The labour court judge also argued that, in the case of adoptions,
the law allows the parents to choose which of them will take the
permitted periods of leave, rather than attributing this right directly
to the mother. For this reason the judge considered that the article in
question could breach the right to equality enshrined in article 14 of
the Spanish Constitution.
The CC pointed out that article 48 SW seeks to protect two different
scenarios. The suspension of a pregnant woman’s contract with the right
to return to her post is intended to protect the health of the pregnant
woman without causing detriment to her labour rights, while the social
security maternity benefit compensates for the loss of income during
this period. If the biological mother is not a worker registered with
the Social Security, she has no right to suspend her employment contract
or to receive the maternity benefit, and as such she cannot assign a
right that she does not have.
In the case of adoptions and foster care, the goal is to facilitate
the integration of the child in his/her new family, so it would make no
sense to give preference to one parent over the other.
As a consequence, the CC held that article 14 of the Constitution is
not breached. The CC also cited case law of the European Court of Human
Rights, which states that “the principle of equality does not always
mean that an equal treatment will be applied regardless of
differentiating elements that are of legal relevance, such that not all
differences in treatment imply an infringement of article 14 of the
Constitution, but rather only those that apply a different treatment to
the same situation without any objective or reasonable justification for
doing so. For a difference in treatment to be constitutionally lawful,
the legal consequences derived from the distinction must be
proportionate to the goal sought”.
It should be noted that following the amendment of article 48.4 SW by
Law 3/2007 of 22 March, upon the birth of a child a father may now
suspend his employment contract with the right to return to his post
even if the mother does not have the right to do so.
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11. Rights and
duties in exercising the right to strike
Judgment of the Labour Chamber of the
Supreme Court dated 25 January 2011
The Supreme Court (“SC”) refers to the CC´s
precedents regarding the basic principles of the right to strike and the
duty to preserve other legally protected property or interests.
The case at issue involves a railway accident in which the train
driver died and three people were injured. Some members of the company’s
standing committee decided to call a strike for the following day as a
sign of mourning and in protest for the accident. As a result of the
strike, the railway company suffered substantial losses deriving from
passengers’ claims and loss of earnings.
The SC held, contrary to the allegations of those calling for the
industrial action, that the strike was organised in protest against the
company for the events which took place and that the strikers were fully
aware of the effects that this would have on the passengers. The SC
decided that the one-day strike constituted a collective disruption of
work, either through pressure or as a protest measure, and therefore
qualified it as a strike. The SC thus decided that those who called the
strike had acted in breach of the employer’s right to be notified of the
exercise of the right to strike. The obligation to notify set out in
article 3.3 of Royal Decree-Law 17/1977 of 4 March is intended to
protect other interests that may be affected, particularly in relation
to services essential to society.
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12. Non-competition
agreements
Judgment of the Labour Chamber of the
Supreme Court dated 22 February 2011
The Supreme Court (“SC”) considered the legality of
a non-competition agreement pursuant to which the claimant was obliged
not to compete, directly or indirectly, in his own name or that of
another, through any type of relationship with other companies that
performed the same activity as his employer. In return, the employer was
obliged to pay the claimant compensation equivalent to two years of the
salary he was being paid when the contract was terminated.
The SC held that the obligation established in the agreement was not
a conditional obligation dependent upon a future or uncertain event.
Instead, it was an agreement that was always compulsory for one of the
parties, the worker, and discretionary for the other, the company. As a
consequence, the agreement was null, since article 1256 of the Civil
Code establishes that the effectiveness of an obligation cannot be left
to the discretion of one of the parties.
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13. Back pay and
social security contributions
Judgment of the Labour Chamber of the
Supreme Court dated 19 January 2011
The appeal before the SC examined the question of whether pursuant to
article 57.2 of the SW, the State is obliged to pay the social security
contributions corresponding to periods of temporary incapacity, given
that the State is responsible for the payment of back pay in dismissal
cases where this amount has been paid directly by the employer during
the accrual of back pay.
The SC held that the State’s obligation to settle back pay also
includes the payment of the corresponding social security contributions.
To support this conclusion, the SC cited the Orders of 16 January 2007
and 22 January 2008, which state that the obligation to settle back pay
comprises two closely-related obligations: i) the strict obligation to
pay workers their wages and ii) the obligation to pay the corresponding
social contributions. It was also highlighted that in temporary
incapacity cases there is no obligation to settle back pay as the
employment contracts are suspended, although the State does have an
obligation to pay the social security contributions pursuant to article
106.4 of the General Social Security Law.
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14. Scope of
collective bargaining agreements
Judgment of the Labour Chamber of the
Supreme Court dated 24 February 2011
In this case the SC ruled on the applicable collective bargaining
agreement when a company’s registered office is in a province other than
that of the collective bargaining agreement the worker claims should be
applied.
In this particular case the worker’s employment contract stated that
the Lugo collective bargaining agreement was applicable, even though he
was a bus driver on the Barcelona-Madrid-Lisbon route.
In determining which collective bargaining agreement was applicable,
and therefore whether the worker was entitled to the increased salary
that he was claiming pursuant to the collective bargaining agreement for
road passenger transport of Madrid, the SC referred to article 83.1 of
the SW, which states that “the scope of application of collective
bargaining agreements will be that determined by the parties”.
Consequently, as both of the collective bargaining agreements in
question use the place of work to delimit their geographical scope, as
opposed to the company’s registered office, it should be understood that
the Madrid collective bargaining agreement was applicable. Although the
company claimed it had no workplace in Madrid, the SC held that it had
an organisational structure in Madrid that was sufficient for these
purposes.
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15. The sanction
and when it becomes effective. Nullity
Judgment of the Labour Chamber of the High
Court of Justice of Extremadura dated 29 March 2011
This judgment is based on the lawsuit filed by a worker, a labourer,
against his employer after the latter suspended him for 20 days without
salary due to two breaches of conduct categorised as highly serious by
the applicable collective bargaining agreement; feigning an injury
sustained during employment and an unjustified absence from work. The
notification of the sanction imposed stated that the date of the
suspension would be communicated once the company had organised its work
schedule.
In upholding the appeal filed by the worker, the Court stated that
article 58.2 of the Statute of Workers requires that the notification
contain the date the sanction comes into effect, even though the Court
admitted that the wording of the article is unclear, since it states
that: “The sanction for serious and highly serious breaches of conduct
must be notified in writing to the worker, setting out the date and
facts giving rise to the sanction”. However, the Court held that, in
accordance with the intent and purpose of the article, the correct
interpretation was that the date the article refers to is the date on
which the sanction becomes effective, since the purpose of the law is to
provide the worker with certainty as to the sanction imposed.
The notification also serves a second purpose. The Court referred to
article 55 SW, which establishes the requirement that a dismissal letter
must contain the date on which the dismissal is to become effective. In
this respect, the notification of the effective date of the dismissal
informs the worker of the term to appeal the dismissal.
Applying this interpretation of the article to the case at issue,
where sanctions are imposed for serious or highly serious breaches of
conduct, the communication of the date on which the sanction becomes
effective must also state the beginning of the term for the worker to
file an appeal.
In consequence, the Court upheld the appeal to avoid the compliance
of the sanction being left to the company’s discretion.
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16. Obligation to
reinstate an employee due to the nullity of the dismissal. Change in
working conditions
Judgment of the Labour Chamber of the High
Court of Justice of Castilla-León (Burgos) dated 14 April 2011
The lawsuit was filed by a worker who was reinstated in the company
after his dismissal was declared null. The worker claimed that the
obligation for him to be reinstated was not fulfilled by the company as
he was reinstated in a different position than the one he worked in
prior to the dismissal.
The High Court of Castilla y León examined whether reinstating the
worker in a different position as a result of the closure of the
department in which he worked is an irregular reinstatement.
The Court referred to article 55.6 SW and articles 280, 281, 282 and
284 of the Labour Procedure Law (Ley de Procedimiento Laboral), (“LPL”),
on the immediate obligation to reinstate a worker following the
declaration of the dismissal’s nullity, stating that these articles
establish compliance in natura with the obligation to reinstate. Non-compliance
with this obligation is only allowed when the obligation to reinstate in
natura is rendered impossible due to the disappearance or closure of the
company. Only in this case will a worker be entitled to the economic
equivalent of satisfying the obligation according to the criteria for
compensation established in article 279 LPL. The judgment states that
economic compensation should only be paid when the employer has no other
means of complying with the decision. The Court held that in this case,
the employer, which had been forced to close the department where the
claimant worked, reinstated the worker in a different position pursuant
to the employer’s right to unilaterally change the non-essential
conditions of the worker’s contract (ius variandi) for organisational
and managerial reasons. With its actions, the employer did not mean to
take any reprisals against the worker or intend to avoid fulfilling the
reinstatement order. The worker’s claim was thus rejected by the Court.
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17. Exemption for
IRPF (personal income tax) on severance payments
Judgment of the Contentious-Administrative
Chamber of the High Court of Justice of Madrid dated 4 March 2011
The High Court of Justice of Madrid (“HCJM”)
examined whether, in order to calculate the exempt amount of the
severance payment for a worker’s dismissal it was compulsory to take
into account the number of years worked in the companies of the same
group, or whether only the most recent contract with one of the group
companies should be considered.
The HCJM cited the case law of the Supreme Court pursuant to which,
when calculating the amount exempt for the purposes of IRPF, the number
of years worked for the same employer must be taken into consideration.
The only exception to this rule establishes that if a worker has worked
successively for companies of the same group, it is considered that he
has worked for only one employer. Consequently the exempt severance
payment must be calculated according to the worker’s seniority in the
company group.
In the case at hand a worker had worked for different companies
belonging to a group. The most recent company in which he had worked
only took the number of years worked in this company into account for
the purposes of the IRPF exemption, but not the total number of years
worked for the group. The HCJM held that all the years worked for the
group must be taken into account when applying the exemption. Group
companies are therefore considered to be a sole employer for such
purposes.
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