The fact that an
employee rendered services through several temporary employment
contracts for more than 24 months within a 30-month period does not
imply that his contract can become permanent if the services were
rendered in different locations. The Supreme Court held that the wording
of article 15.5 of the Statute of Workers, as amended by Law 43/2006,
refers to the concatenation of contracts for the same post, and
therefore excludes contracts for jobs in the same professional category
but in different locations.
In this case, a
collective claim was filed against a publicly-owned company, requesting
that the salary reductions established in Royal Decree-Law 8/2010 of 20
May on extraordinary measures to reduce the public deficit, not be
applied because the measure was contrary to the applicable collective
bargaining agreement. The claimants argued that the employer
substantially modified the terms of their employment contracts without
following the compulsory procedure established in article 41 of the
Statute of Workers. However, the Supreme Court held that this procedure
did not need to be followed because the modification derived from a new
law, which prevails over the collective bargaining agreement.
analyses the right of employees who have been unfairly dismissed by a
company to exercise the same company’s stock options. The stock option
in this case could only be exercised more than two years after the
termination of the contract. However, a clause in the stock option plan
stated that employees whose employment contract had been terminated by
the company no longer had the right to exercise the stock options. The
Supreme Court held that the agreement signed by the employer and the
employee, that is, the stock option plan, prevails, and therefore the
employee lost his/her right to exercise the stock option when his/her
signed a temporary employment contract to substitute an employee who was
on a mandatory leave of absence. Once the mandatory leave of absence
ended, the substituted employee took a voluntary leave of absence
without returning to his post. The substitute employee continued
providing services under the initial contract. The High Court of Justice
of Andalusia held that the temporary contract had become permanent given
that the employee continued providing services even though the reason he
was contracted had ceased to exist and that, therefore, the termination
of the contract implied an unfair dismissal.
considers the right to take maternity leave and the corresponding
financial benefit of a mother whose child was born to a surrogate. The
judge argued that one of the purposes of maternity leave is to help a
mother take care of her child. This is why leave is granted even in
cases when the mother has not given birth to the child (such as adoption).
As a similar situation, gestational surrogacy must be given the same
protection and a person who chooses to have a child through a surrogate
mother should be entitled to maternity leave and the corresponding
An employee who
was the victim of an assault committed by a colleague whilst at work,
sought damages against the company alleging that it was civilly liable
for damages caused by its employees while carrying out their duties. The
Court of Appeal of Salamanca emphasised the need to prove the employer’s
fault or negligence, and held that the employer could not have foreseen
the assault and could not have taken any steps that would have prevented
the injuries suffered by the victim. The court therefore declared that
the employer was not liable for any damages.
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1. The concatenation of
TEMPORARY EMPLOYMENT CONTRACTS PERFORMED IN DIFFERENT LOCATIONS DOES NOT
CREATE A PERMANENT employment relationship
the Labour Chamber of the Supreme Court dated 8 February 2012
2004 and December 2006, the claimant rendered services to an industrial
assembly company under successive temporary works and services contracts.
He always had the same professional category even though each post was
different and based in different locations. In December 2006, the
company informed the employee of the termination of his last contract,
which the employee challenged on the ground that their employment
relationship had become permanent.
Court (“SC”) confirmed that the employee had rendered
services to the company for more than 24 months within a 30-month period,
and had therefore reached the maximum limit of permitted successive
temporary contracts established in article 15.5 of the Statute of
Workers (“SW”), as amended by Law 43/2006 of 29
December, which was in force at the time of the contract termination.
However, article 15.5 of the SW provided that the prohibition on the
concatenation of temporary contracts applies to contracts “for the
same post in the same company”. In the case at hand, the employee
had entered into several contracts for different posts at various
locations. The SC considered that even though the employee’s
professional category was the same, the different location of each post
meant that a permanent employment relationship did not exist.
The wording of
article 15.5 of SW has now been amended and the concatenation of
contacts is also prohibited for contracts “for the same or different
posts with the same company or group of companies”, which would
include the case at hand. However, the previous wording of the article
continues to apply to contracts entered into prior to the modification,
in other words, to contracts signed before 31 December 2006.
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2. LAWFULNESS OF
REDUCING THE SALARIES OF PUBLICly-owned COMPANY EMPLOYEES IN LINE WITH
ROYAL DECREE-LAW 8/2012
the Labour Chamber of the Supreme Court dated 24 April 2012
In this case,
the Trade Union Confederation of Workers’ Commissions (Comisiones
Obreras) of Galicia initiated a collective labour dispute against
the publicly-owned company, Servicios Agrarios Galegos (SEAGA), claiming
that its’ employees’ salaries should not be reduced as a result of Royal
Decree-Law 8/2010 of 20 May on extraordinary measures to reduce the
public deficit. The Royal Decree-Law established a salary reduction of
5% for all workers of publicly-owned companies.
argued that the applicable collective bargaining agreement (which
established the minimum salary), could not be unilaterally modified by
the employer according to article 37.1 of the Spanish Constitution,
unless the modification followed the procedure established in article 41
of the Statute of Workers (“SW”) for the substantial
modifications of employment conditions.
Court (“SC”) stated that the main issue under dispute
was whether the subordination of the collective bargaining agreement to
the Budget Law (based on the latter prevailing over the former according
to doctrine of the sources of law) can be enforced half-way through the
budget year in course, implying a salary reduction as from that moment.
The SC stated that article 37.1 of the Spanish Constitution does not
entail that a law (even if its implementation is unforeseen) cannot
modify collective bargaining agreements. Therefore, the SEAGA’s salary
conditions complied with the Budget Law for 2010, but once the Budget
Law is modified (which is possible), the content of the collective
bargaining agreement should be adapted to the new law.
reduction is not a substantial modification of employment conditions
pursuant to article 41 of the SW because it was not the company that
decided to reduce its employees’ salary, but rather that the reduction
was imposed by law.
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3. CAN STOCK OPTIONS
THAT WERE NOT exercisable when THE employee WAS unfairly dismissed BE
the Labour Chamber of the Supreme Court dated 3 May 2012
analyses whether an employee can exercise stock options after being
unfairly dismissed. In this case, the stock options were exercisable
over two years after the termination of the contract. According to the
stock option plan, employees would lose their right to exercise the
stock options if they were no longer in the company.
Court (“SC”) held that according to the wording of the
stock option plan, the company acted lawfully by not allowing the
claimant to exercise his/her stock option. The stock option plan
expressly stated that the right to exercise stock options would be lost
by "beneficiaries whose employment contract is rescinded or revoked
by the group (...)", which does not exclude an unfair dismissal.
The SC also
rejected the employee’s claim that there had been a breach of article
1256 of the Civil Code because the validity or enforceability of the
stock option plan was subject to the sole discretion of one of the
contracting parties. The stock option plan expressly stated that the
employee would have to be working in the company to exercise the stock
option. This is fully in line with the purpose of the stock option plan,
which was to secure the employee’s loyalty, motivation and link with the
company. If, as in the case at hand, an employee’s contract is
terminated seven months after signing up to the plan, the reason to link
the employee to the company ceases to exist, as does the right to
exercise the stock option.
the rule under which the termination of the employment contract implies
the loss of the right to exercise the stock option does not apply when,
as in numerous cases heard by the SC, the employee is dismissed just a
few months before he/she can exercise the stock option. These cases
should be considered a unilateral act of the employer to prevent the
employee from exercising the stock option. In the case at hand, there
was no evidence of the employer’s intention to prevent the employee from
exercising the stock option, since the dismissal took place more than
two years before the date on which the stock option could be exercised.
The SC therefore
held that the employee lost his/her right to exercise the stock option
upon the termination of his/her employment contract.
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4. MODIFYING THE
GROUNDS OF A TEMPORARY CONTRACT IMPLIES ITS CONVERSION INTO A PERMANENT
CONTRACT AND TERMINATING THE TEMPORARY CONTRACT IS CONSIDERED AN UNFAIR
the High Court of Justice of Andalusia (Seville), dated 1 February 2012
The claimant was
hired through a temporary contract to substitute an employee who was on
a mandatory leave of absence in order to perform a public duty. The
agreed term of the contract ended when the mandatory leave terminated or
when the substituted employee returned to his post.
termination of the mandatory leave of absence, the substituted employee
took a voluntary leave of absence without returning to his post. During
this period the substitute employee continued providing services under
the initial temporary contract.
The High Court
of Justice of Andalusia stated that the company should have executed a
new contract with the employee upon the termination of the mandatory
leave of absence given that the grounds for entering into the previous
contract no longer existed. In contrast, as a result of the company’s
failure to execute a new contract, the employee continued rendering
services, but under different grounds to those of the original contract.
Consequently, the temporary contract became permanent and the
termination of the contract was therefore held to be an unfair dismissal.
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5. RIGHT TO MATERNITY
LEAVE AND THE Corresponding FINANCIAL benefit OF A MOTHER whoSe child
was born to a surrogate IN the USA
Judgment of Labour Court number 5 of
Oviedo dated 9 April 2012
child was born by gestational surrogacy in the United States. The child
was registered at the Spanish Consulate in Los Angeles and the claimant
was registered as his mother and her partner as his father. Once in
Spain, the claimant applied to the Health Service of the Principality of
Asturias (SESPA) for a certificate so that she could take maternity
leave. The SESPA refused to grant her the certificate claiming that a
surrogate birth does not create an entitlement to maternity leave.
analysed the purpose of maternity leave and concluded that it was two-fold:
to ensure the health of working women who are in the pregnancy,
childbirth or postpartum stages; and to facilitate the mother’s care for
her child. This second purpose is evidently met in cases where there is
no birth, such as in adoption and other similar situations.
The judge held
that surrogate motherhood is comparable to adoption and other similar
situations because the protected “status” is always motherhood. The fact
that surrogate motherhood is not only not recognised in Spain but
prohibited is no reason to deny a mother the right to take maternity
leave. The judge argued that other illegal or irregular situations are
protected by the legal system (for example, a widow is entitled to a
pension even if her deceased husband was a national of a country that
recognises polygamy, a criminal offence under Spanish law).
having established that surrogate motherhood is comparable to other
protected situations, the judge found that to refuse a mother whose
child was born to a surrogate the same protection and rights that people
in those similar situations enjoy would be a breach of the principle of
the differences in the various situations considered do not justify the
refusal of the right to take maternity leave. The judgment held that the
claimant was entitled to maternity leave along with the corresponding
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6. COMPANY NOT LIABLE
FOR AGGRAVATED ASSAULT COMMITTED BY ONE EMPLOYEE AGAINST ANOTHER
the Civil Chamber of the Court of Appeal of Salamanca dated 5 March 2012
settled an appeal for damages deriving from an aggravated assault by an
employee on a fellow colleague. The victim sought damages from the
employer on the basis of article 1903 of the Civil Code, which covers
employers’ liability for damages that are caused by employees while
carrying out their duties. Criminal proceedings had already taken place
which resulted in the accused being convicted of attempted murder.
states that in order to find the employer liable, it is necessary to
prove a causal link and the employer’s fault or negligence, neither of
which was proved in this case. The judgment highlights certain facts to
be particularly important in proving that the company was not at fault
or negligent. Firstly, the company could not have predicted the
aggravated assault given that as stated in the criminal ruling, the
assault was unforeseeable and random, and also because the employer was
not aware of the hostility existing between the two employees.
aggravated assault was carried out with a normal work tool (a strut).
Given that the object itself was not inherently dangerous, the company
was not obliged to establish special cautionary procedures.
assault, the other employees immediately rushed to the victim’s aid and
minimised his injuries.
In addition, the
court declared that the fault could not be objectified or the burden of
proof reversed because there was no disproportionate or unjustifiable
damage, or an extraordinary risk created by the employer.
The Court of
Appeal rejected the appeal in its entirety due to the company’s lack of
fault and negligence.
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