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1. Extension of the PROFESSIONAL RETRAINING programME for WORKERS
whoSE unemployment benefit HAs RUN OUT
Royal Decree 1/2013 of 25 January on the extension of the
professional retraining programme for workers whose unemployment benefit
has run out and other urgent measures for employment and unemployed
workers’ welfare
Royal Decree 1/2013 of 25 January on the extension of the
professional retraining programme for workers whose unemployment benefit
has run out and other urgent measures for employment and unemployed
workers’ welfare (“Royal Decree-Law 1/2013”) extends until 16
August 2013 the professional retraining programme for workers whose
unemployment benefit has run out. It also establishes a six-month period
of automatic extensions from 16 August 2013 onwards, provided that
unemployment in Spain exceeds 20% according to the latest Labour Force
Survey published before the date of the corresponding extension.
The retraining programme was created by Royal Decree-Law 1/2011 of 11
February on urgent measures to encourage stable employment and provide
professional retraining for unemployed workers. The programme involves
analysing the employability of the worker and active measures to
encourage professional retraining or reinsertion in the labour market.
Workers taking part in the programme whose monthly income does not
exceed 75% of the minimum wage, excluding extraordinary payments, will
be entitled to 75% of the monthly National Indicator of Earnings (IPREM)
for up to six months.
This regulation also includes a reduction in the minimum number of
working days contributed to be entitled to unemployment benefit or to
the farm income in the case of temporary agricultural workers in the
Autonomous Communities of Andalusia and Extremadura, regulated by the
first and second transitional provisions of Royal Decree 5/1997 of 10
January. Workers will only have to prove that they have contributed for
a minimum of 20 working days in the last twelve months before being made
redundant to be entitled to unemployment benefit, provided that they
submit their application within 6 months of the entry into force of
Royal Decree 1/2013. If the application was submitted between 1
September 2012 and the date of entry into force of Royal Decree 1/2013,
a new application may be submitted to receive the benefit set out in the
new regulation.
Moreover, Royal Decree 1/2013 extends the period to recover the
unemployment benefit established in article 16.1 of Law 3/2012 of 6 July
on urgent measures to reform the employment market (“Law 3/2012”).
In this regard, workers whose employment contracts were suspended,
whether or not continuously, or whose working time was reduced, either
pursuant to article 47 of the Statute of Workers or as a result of
insolvency proceedings between 1 January 2012 and 31 December 2013,
before being made redundant on objective grounds, are entitled to
recover their unemployment benefit, provided that their employment
contracts were terminated between 12 February 2012 and 31 December 2014.
The regulation also extends the period established in the second
paragraph of transitional provision eight of Law 3/2012, such that until
31 December 2013 training and apprenticeship contracts may be
implemented even if there are no professional training titles or
specialised certificates linked to the work actually to be carried out
or even if there are no training centres available for the training
programmes. In this regard, Royal Decree-Law 1/2013 establishes that the
training activity must include the minimum guidance contents set out in
the training database, available at the National Public Employment
Services’ website.
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2. Expiry of SANCTION PROCEEDINGS AFTer THEIR interruption
Judgment of the Supreme Court dated 6
November 2012
In a case heard by the Supreme Court (“SC”) the appellant
alleged that an interruption exceeding the maximum three-month term (at
that time) of inspection activities in sanction proceedings for the
violation of the employees’ right to privacy and dignity and resulted in
the expiry of the proceedings, thus leading to the settlement report
being declared null.
Upon consideration of the applicable regulations, the SC held, as in its
decisions of 12 November 2001 and 21 July 2004, that although article
8.2 of Royal Decree 928/1998 of 14 May does not stipulate the expiry of
sanction proceedings as a consequence of their interruption, the general
rules on sanction proceedings established in Law 30/1992 of 26 December
must be applied and the expiry of the proceedings declared.
The SC further stated that exceeding the maximum legal term for the
interruption of the proceedings will give rise to the general
consequence applicable to such cases in proceedings initiated ex officio;
where the Administration exercises its powers to impose sanctions or to
intervene, implying the nullity of the settlement report as the
procedural guarantees had not been respected.
The decision means that the interruption of sanction proceedings
exceeding the maximum legal term established will lead to “(1) the
declaration of the expiry and filing of the proceedings after an
interruption of more than three months; (2) the need to initiate new and
different acts of verification; (3) the need to include the interruption
and its consequences in the settlement report; (4) the inclusion in the
settlement report of the express reason for the actions performed prior
to the interruption”.
Notwithstanding the above, Law 13/2012 of 26 December on measures to
prevent illegal employment and social security fraud, has changed the
term of the sanction proceedings. The initial duration of inspection
activities now stands at nine months, which may be extended by a further
nine months if the Labour Inspectorate encounters special difficulties
in carrying out its activities. The term for the interruption of
sanction proceedings is currently five months.
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3. EVIDENCE BASED ON AUDIO OR VISUAL RECORDINGS OBTAINED WITHOUT THE
CONSENT OF THE PARTY CONCERNED
Judgments (2) of the High Court of Justice
of Madrid dated 8 October 2012, appeals 3000/2012 and 4966/2012
In the case heard by Division 5 of the High Court of Justice of
Madrid (“HCJM”), appeal 3000/2012, a declaration of nullity was
sought for a decision concerning the dismissal of a chef in which it was
held that the dismissal procedure was unfair.
The employer appealed the decision at first instance, alleging that
there had been a violation of his procedural guarantees, since an
audio-visual recording of a conversation with the dismissed employee had
been obtained without the employer’s consent and was admitted as
evidence.
The HCJM based its decision on the constitutional doctrine set out,
among others, in the Decision of the Constitutional Court 12/2012 of 30
January on the use of “hidden cameras” in journalism. It was stated that
it is neither necessary nor appropriate to resort to the recording and
reproduction of the image of the party concerned without their consent
in order to obtain information when other means are available to obtain
the same information which are less detrimental to the party’s
fundamental right to privacy.
Expanding on to the above reasoning, the HCJM held the evidence based on
an audio-visual recording to be illegal, since there were no facts to
justify the need for such evidence. Nevertheless, the HCJM held that the
judge at first instance took into account several forms of evidence
before declaring the claimant’s dismissal unfair. This prevented the
declaration of nullity of the appealed decision.
Notwithstanding this, in appeal 4966/2012, the HCJM found that evidence
consisting of an audio-visual recording stored on a DVD was legal, since
it did not constitute a violation of the fundamental rights to privacy
and secrecy of communications. In this regard, the HCJM made a
comprehensive analysis of the doctrine of the Decision of the
Constitutional Court 186/2000 of 10 July in relation to the
proportionality test that must be satisfied by any measure which
restricts fundamental rights.
The HCJM went on to state that the method the employee used to obtain
the evidence was proportional and that it respected the fundamental
rights at stake. The HCJM held that the company had concealed its
relationship with the dismissed employee and that this fact justified
the use of a hidden camera, given that it was the only means to prove
the existence of the employment relationship.
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4. groups of companies and the enforcement of JUDGMENTS
Judgment of the High Court of Justice of
Madrid dated 15 October 2012
In this case, the High Court of Justice of Madrid (“HCJM”)
analysed whether all the entities forming part of a group of companies
for labour proposes were liable for the severance payments of six
employees. The employees had requested the enforcement of an
unappealable judgment declaring the unfairness of their dismissal.
The labour courts of first instance rejected the enforcement of the
judgment on the grounds that two of the group’s companies had entered
into an arrangement with creditors. The employees appealed the decision,
which was rejected.
As a consequence, the employees lodged an appeal before the HCJM. The
HCJM considered that the judgment against a group of companies for
labour purposes implied that all the companies forming part of the group
would be jointly and severally liable for the obligations deriving from
the judgment. The HCJM therefore held that two companies of the group
which had entered into an arrangement with creditors did not impede the
unappealable judgment from being enforced against those companies that
were not subject to the creditors’ arrangement, as any act to the
contrary would imply disregarding the judgment.
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5. express prohibition of the personal use of IT RESOURCES
Judgment of the High Court of Justice of
Madrid dated 29 October 2012
In a case heard by the High Court of Justice of Madrid (“HCJM”),
an employee was dismissed for disciplinary reasons in October 2011 after
committing a very serious breach of contract. A computer audit revealed
that the employee had used a company computer for personal purposes
during the ten months prior to his dismissal.
The employer established an internal code of conduct in May 2007 which
stipulated that the Internet was only to be used for professional
purposes and that its use for personal purposes was prohibited. Moreover,
in October 2008 the Company reminded all employees about the existence
of the code.
The HCJM explained the Supreme Court’s doctrine in its decisions of 21
September 2007 and 6 October 2011 on absolute prohibitions of using an
employer’s IT resources for personal purposes. The HCJM found there to
be no evidence of the company tolerating the personal use of its
computers after the code of conduct forbidding personal use was
introduced. It considered that the employer could not be expected to
carry out regular checks or remind employees from time to time of the
existence of the internal code. Furthermore, the employer could not be
expected to have already imposed sanctions as a consequence of the
breach of the code.
Finally, the HCJM considered that since the employee did not allege that
his fundamental rights had been violated, the case had to be treated as
an ordinary dismissal. The HCJM held that the dismissal was fair because
the employee’s use of the company’s IT resources for private purposes
had been repeated and even excessive, and therefore constituted a very
serious infringement and a breach of contractual good faith. In this
specific case the applicable collective bargaining agreement did not
refer to this type of behaviour on the scale of very serious
infringements, although it did set out a list of disciplinary measures
the employer could adopt.
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1.Extension
of the PROFESSIONAL RETRAINING programME for WORKERS whoSE unemployment
benefit HAs RUN OUT