Royal Decree-Law
14/2011 of 16 September sets out employment policy guidelines and
introduces the procedure promoting both the employment and the
employability of workers experiencing difficulties finding work due to
individual circumstances.
The European
Court of Human Rights held that an employment relationship permits the
employer to impose a sanction, even dismissal, when the exercise of
freedom of expression is extremely offensive and impugns the honour and
dignity of others.
The European
Court of Justice held that a German collective bargaining agreement
establishing the automatic termination of employment contracts of pilots
reaching an age of less than that established in domestic law and
international agreements violates the pilots’ right against
discrimination on the grounds of age.
The Spanish
Supreme Court has held that a settlement agreement, signed by an
employee in which the company acknowledges the unfairness of the
dismissal but does not offer a severance payment or a reason why the
employee is not entitled to such a payment, is invalid.
The Supreme
Court declared that a substantial modification of the working conditions,
consisting of requiring employees to carry out the working hours set out
in the collective bargaining agreement, was justified because it
favoured the company’s competitive position in the market.
The High Court
of Justice of the Basque Country held that the validity of a suspension
of contract obligates the employer to wait until the suspension period
ends to terminate the contracts of employees on objective grounds.
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1. SUPPLEMENTARY MEASURES ON SPANISH EMPLOYMENT POLICIES
Royal Decree-Law
14/2011 of 16 September sets out supplementary measures on employment
policy and the regulation of the framework applicable to law enforcement
bodies
Royal Decree-Law
14/2011 (“RD 14/2011”) is integrated into the current
provisions designed to enhance the efficiency of Spanish employment
policies in view of the negative outlook surrounding the Spanish economy.
The measures are designed to promote equal opportunities for workers
experiencing difficulties finding work due to individual circumstances.
RD 14/2011 incentivises equal opportunities through two primary
approaches.
Firstly, RD
14/2011 amends Law 56/2003 of 16 December on employment, which now
establishes that the promotion for contracting disabled workers must be
carried out through special employment centres. It also obliges
employment companies for the socially disadvantaged to promote the
contracting of socially-excluded workers.
Secondly, RD
14/2011 extends the validity of training contracts entered into for
workshops such as the Escuelas Taller, Casas de Oficio
and Talleres de Empleo and for other employment-education
projects set up by the autonomous regions that had either been approved
or which were pending approval prior to the entrance into force of Royal
Decree-Law 10/2011 of 26 August on urgent measures for the promotion of
employment of young people, stable employment and the maintenance of the
professional retraining programme for workers whose unemployment
benefits have been exhausted.
RD 14/2011 also
aims to promote self-employment by allowing the autonomous regions to be
involved in the management of discounts of social fees for permanent
contracting through an agreement with the Spanish government, and the
creation of the Committee for the Management of Employment Policies (Comite
de Gestion de Politicas de Empleo). The purpose of the latter is to
control and oversee the economic aspects of the management of the
Employment Policies Fund (Fondo de politicas de empleo).
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2. DISMISSAL OF TRADE UNION MEMBERS. THE RIGHT TO FREEDOM OF
EXPRESSION MUST BE CONSIDERED TOGETHER WITH THE LIMITATIONS IMPOSED BY
AN EMPLOYMENT RELATIONSHIP
Judgment of the
Grand Chamber of the European Court of Human Rights dated 12 September
2011. Palomo Sanchez and others v. Spain
In this case,
the European Court of Human Rights (“ECHR”) considered
the disciplinary dismissal of several members of a trade union for
publishing offensive materials in a trade union newsletter in which they
derided and offended several co-workers and the human resources manager
by criticising their conduct at previous proceedings regarding salary
claims which the union members brought against the company.
The claimants
initiated the legal proceedings in Spain, claiming that their dismissals
had been in reprisal for bringing the lawsuit on salary claims and that,
therefore, such reprisals violated their right to freedom of association
and freedom of expression.
The claim was
dismissed by the labour court and, subsequently, by the High Court of
Justice of Catalonia and the Supreme Court. Furthermore, the Spanish
Constitutional Court dismissed the appeal for the protection of the
workers’ rights under the Constitution, as no rights had been violated.
The case was
then brought before the ECHR, which studied applicable Spanish law,
Articles 10 and 11 of the European Convention on Human Rights and the
reasoning behind the Spanish courts’ decisions in this case. The ECHR
concluded that the right to freedom of speech should be analysed within
the context in which it is exercised. The ECHR stated that the analysis
involved balancing labour relations, the principle of good faith and the
significant discretion granted to employers in different jurisdictions
on sanctioning certain types of conduct. In this regard, the ECHR
decided that, even if the principle of good faith in the context of an
employment contract does not imply a duty of absolute loyalty, there are
certain aspects of the right to freedom of speech which, although legal
in other contexts, would be inappropriate in labour relations. The ECHR
found that attacking individuals with unacceptable criticism in a
professional environment, as in this, causes disruptive effects and
justifies severe sanctions. The ECHR therefore held that the dismissal
of the union members violated no right.
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3.
COLLECTIVE BARGAINING AGREEMENT OF A GERMAN COMPANY OBLIGATING AIRLINE
PILOTS TO RETIRE AT 60 YEARS OF AGE. VIOLATION OF THE RIGHT AGAINST
DISCRIMINATION ON THE GROUNDS OF AGE
Decision of the
Grand Chamber of the European Community Court of Justice dated 13
September 2011
A German airline
company terminated the employment contracts of pilots who had reached 60
years of age, the retirement age established in the corresponding
collective bargaining agreement. Although convention justifies the need
to impose the retirement age to ensure air traffic safety, German
regulations and international agreements allow pilots to continue
working after reaching the retirement age established in the collective
bargaining agreement, subject to specific restrictions.
The decision
addressed the first instance decision of the Bundesarbeitsgeright
(the Federal Labour Court of Germany) on potentially discriminatory
treatment in connection with a collective bargaining agreement which
established the automatic termination of pilots’ contracts upon reaching
60 years of age, irrespective of international rules and German
regulations allowing pilots to continue working, subject to limitations,
until the age of 65.
The European
Court of Justice (“ECJ”) analysed Council Directive
2000/78/EC of 27 November related to the establishment of a general
framework for equal treatment in employment and occupation. The ECJ held
that, in the specific case, the air traffic safety that the collective
bargaining agreement was designed to protect by forcing retirement at
the age of 60 is not a legally permissible basis on which to
discriminate amongst employees. This is because the lawful grounds on
which different treatment may be applied on the basis of age and which
are not considered as discriminatory must be linked to the employment
policy, the employment market or professional development. Given that
air traffic safety does not constitute a legal basis on which to permit
differences in treatment due to age, the ECJ held that the measure
established in the collective bargaining agreement violated the right of
pilots to not be discriminated against on that basis.
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4.
FAILURE TO PAY SEVERANCE PAYMENT RENDERS A SETTLEMENT AGREEMENT INVALID
Judgment of the
Labour Chamber of the Supreme Court dated 22 March 2011
This judgment
considered a case in which a company dismissed an employee on
disciplinary grounds and in the same act acknowledged the unfairness of
the dismissal. The employee signed a settlement agreement in which the
company offered to pay an amount corresponding to the extraordinary
payments owed to him and the pending salary for the days worked until
the date of dismissal, but it did not offer a severance payment. In the
same document, the employee declared that he had been paid all amounts
owed to him derived from his employment relationship and that he had
nothing else to claim from the company.
Citing the
Labour Chamber’s judgment dated 28 February 2000 (in which the
settlement agreement did not include overtime pay or attendance and
punctuality bonuses), the Supreme Court held that the agreement signed
by the employee in this case did not discharge the company’s obligations:
even though the company had acknowledged the unfairness of the dismissal,
it had neither offered the employee a severance payment nor made any
reference to why the employee would not be entitled to such a payment.
The Supreme Court reasoned that holding that the document had discharged
the company’s obligations would be contrary to article 1,283 of the
Spanish Civil Code, which requires that an agreement be interpreted
solely on the basis of its terms without inferring anything different to
that agreed by the parties.
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5.
SUBSTANTIAL MODIFICATION OF WORKING CONDITIONS THAT IMPROVES THE COMPANY’S
COMPETITIVE POSITION IN THE MARKET: PERFORMANCE OF WORKING HOURS
NEGOTIATED IN THE COLLECTIVE BARGAINING AGREEMENT
Judgment of the
Labour Chamber of the Supreme Court dated 16 May 2011
This judgment
analyses a case where, since the start of the company’s activity, the
employees had been following a working schedule that was notably shorter
than that agreed in the collective bargaining agreement, even though
there was no corresponding reduction in remuneration.
The company
decided to impose the working schedule established in the collective
bargaining agreement, following the procedure stipulated in article 41
of the Statute of Workers. The company sent a letter to its employees
indicating its concerns about the company’s market position and stance
that, should the employees perform the difference between the weekly
hours worked (34 hours) and the weekly hours established in the
collective bargaining agreement (37.5 hours), both the company’s
productivity and market position would improve. The letter also made
reference to the measure’s ethical and moral benefits given that it is a
public-sector company, and therefore its spending is strictly and
rigorously monitored.
The trade union
filed industrial dispute proceedings claiming that the alleged objective
grounds on which the company based its decision to make the substantial
modifications were vague and imprecise and that, as the company had not
offered evidence of its statements, they were insufficient to withdraw
an acquired right. As a consequence, the trade union claimed that the
company’s decision should be declared unjustified and that the employees
could continue their 34-hour working week.
The Supreme
Court cited the Labour Chamber’s judgment dated 17 May 2005, which
stated that the justification of the reasons for the company’s decision
is not the company’s “crisis” but rather the “improvement” of its
situation. The Supreme Court also stated that the authority to manage
the company cannot be understood in line with the same parameters when
modifications are made to the working conditions, as when dismissals are
made based on objective grounds, because there are different interests
at stake.
The Supreme
Court held that the company’s modification of the working conditions,
consisting of the performance of the working week as set out in the
collective bargaining agreement, was justified, because it would
significantly improve the company’s market position.
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6. UNFAIR DISMISSAL ON OBJECTIVE GROUNDS OF TWO EMPLOYEES WHOSE
CONTRACTS ARE UNDER SUSPENSION
Judgment of the
Labour Chamber of the High Court of Justice of the Basque Country dated
2 May 2011
The High Court
of Justice of the Basque Country (“HCJ”) rejects an
appeal filed by a company that had dismissed two employees on objective
grounds whose contracts were under suspension.
The HCJ held
that dismissals of employees on objective grounds require a distinct
justification from that underlying the suspension of their contracts.
The separate justification must be evidenced by the employer before the
dismissal is carried out.
The company’s
letter communicating the dismissals made no reference to any change of
circumstances which would force it to breach its voluntary decision to
suspend the employment contracts. The company failed to evidence the
reasons justifying the dismissals on objective grounds. Additionally,
inconsistencies in the company’s human resources policy were apparent,
including the publication of vacancies on its website shortly after the
dismissals.
The holding was
based on the consideration that the suspension of employment contracts
implies an agreement between the employer and the employee
representatives, which must be respected by both parties. The HCJ held
that the employer’s actions fell outside the standard expected of a
reasonable businessperson. The employer failed to take into account that
an agreement with the employees was in force, which purpose was to allow
the employer to avoid taking more onerous measures. The HCJ declared the
dismissals unfair based on reasonableness and diligence, holding that
the company should have waited until the end of the suspension of the
employment contracts to determine if the situation had improved and
decide, based upon that conclusion, whether to carry out the dismissals.
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