The Constitutional Court examines whether the criteria established in
the consolidated text of the General Social Security Law, approved by
Royal Legislative Decree 1/1994, to calculate the contribution period
for part-time workers to qualify for a retirement pension are
unconstitutional.
The Supreme Court analyses the treatment given to word, sound and
image recording media in labour appeal proceedings and the possibility
of this media being considered documentary evidence on which an appeal
can be based.
The Supreme Court unifies legal doctrine regarding the specificity
required in a dismissal letter based on threats to co-workers that does
not indicate the exact actions or time they took place.
The National Court considers whether a collective redundancy decision
can be declared null if a company refuses to negotiate the reversal of
the decision or a reduction of its effects on the grounds that the
company is no longer viable.
The High Court of Justice of the Balearic Islands upholds an employee’s
dismissal on the grounds that he helped install a recording device in a
meeting room where a management committee meeting was scheduled to take
place.
The Provincial Court of Granada issues the first sentence ordering a
conviction for social security fraud following the reform of the
Criminal Code.
The High Court of Justice of Extremadura holds that refusing to
undergo compulsory medical examinations is a ground for dismissal.
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1. THE CRITERIA TO CALCULATE THE CONTRIBUTION PERIOD
FOR PART-TIME WORKERS TO QUALIFY FOR A RETIREMENT PENSION ARE
UNCONSTITUTIONAL
Judgment of the Constitutional Court dated 14 March 2013
In this case, the Constitutional Court (“CC”)
decided whether the criteria to calculate the contribution period for
part-time workers to qualify for a retirement pension was
unconstitutional on the basis that they violated article 14 of the
Spanish Constitution (“SC”).
The criteria analysed by the CC is established in the General Social
Security Law (“GSSL”) and
states that the contribution period must be calculated by taking into
account only the hours actually worked by the employee. Two corrective
rules are also included; one to calculate the “hypothetical days” during
which contributions were made and the other, a multiplier that is
applied to the outcome of the aforementioned calculation.
The violation of the SC is based on the fact that the criteria: (i)
give rise to inequality between part-time and full-time workers because
the principle of proportionality is not applied, and (ii) are indirectly
discriminatory towards women.
The dispute that gave rise to the question at hand concerned a worker
who had been employed for over eighteen years and who was denied a
retirement pension because she did not meet the qualifying period
established in the GSSL under dispute. Therefore, the contribution
period was calculated using a rule which constitutionality was in doubt.
It should be borne in mind that the worker had been a part-time worker
for a substantial part of the eighteen year period during which she had
worked.
The CC held that the GSSL violates article 14 of the SC as mentioned
above. It considered that the GSSL violates the principle of equality
because there is no reasonable justification for the differences between
full-time and part-time workers and thus this leads to disproportional
consequences. The CC referred to EU case law and stated that the GSSL is
detrimental to workers who have been working part-time for long periods
of time because, by applying the criteria established to calculate their
contribution periods, they do not become entitled to a retirement
pension. In addition, this in turn causes indirect discrimination
towards women as they form the vast majority of part-time workers.
The corrective rules were also considered unconstitutional. The first
one regarding the calculation of the “hypothetical days” during which
contributions were made, which entails dividing the total number of
hours worked by five, is just a more technically precise procedure to
make the calculation easier. The second rule, applying a multiplier to
the “hypothetical days” during which contributions were made extends the
scope to qualify for a pension to all part-time workers but not in all
cases. Those who have worked as part-time employees for long periods of
time will not be entitled to a retirement pension as its application is
limited to workers who have worked part-time in exceptional
circumstances during their working life.
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2. FACTS PROVEN ON THE BASIS OF VIDEO RECORDINGS
CANNOT BE RE-EXAMINED
Judgment of the Supreme Court dated 26 November 2012
This case originated from a first instance decision which held that
the dismissal of a supermarket cashier was unfair as the accusations of
fraud brought against her had not been proved. The company subsequently
lodged an appeal with the High Court of Justice of Madrid (“HCJM”)
to request that the HCJM re-examine the facts that had been proven on
the basis of video recordings taken of the employee during her working
hours. The HCJM rejected this appeal on the basis that video recordings
are unsuitable media for re-examining facts.
In its appeal before the Supreme Court (“SC”),
the company cited a contradictory ruling of the HCJM of 6 July 2004.
Whilst the two cases bear great similarities, in the earlier ruling the
HCJM adopted a broad approach to documentary evidence and agreed to re-examining
the facts that were proven on the basis of video recordings.
The SC rejected the company’s appeal on the grounds that audio and
video recordings should not be considered documentary evidence for the
purposes of re-examining proven facts in labour proceedings. Firstly, in
labour proceedings, audio or video recordings are not considered
documentary evidence; secondly, the Civil Procedure Law (“CPL”)
establishes that video and audio recordings submitted as documentary
evidence are supplementary means only in labour proceedings; and finally,
the CPL treats evidence in the form of documents differently to that in
the form of recordings.
Furthermore, the SC stated that the concept of documentary evidence,
when used to review proven facts, must be interpreted narrowly due to
the extraordinary nature of appeals.
The SC does not reject appeals in criminal proceedings that are based
on documentary evidence in the form of word, sound and image recordings,
but rejects them in labour proceedings. The rationale behind this
distinction is that unless the CPL specifically provides for this type
of media to be used as documentary evidence in labour proceedings, this
form of evidence can only be supplementary, and further, that
documentary evidence is given a broader interpretation in the Criminal
Code.
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3. DISMISSAL FOR THREATENING CO-WORKERS
Judgment of the Supreme Court dated 12 March 2013
The dispute arose following a worker’s claim regarding the
modification of his working conditions (working time and functions).
After these proceedings were drawn to a close, the worker became hostile
towards a co-worker who replaced him due to the change of his working
time, and a co-worker who testified in the proceedings. The company
decided to dismiss the worker on the grounds of his threatening
behaviour towards these individuals. The first instance court upheld the
dismissal. However, on appeal, the High Court of Justice of the Basque
Country overruled the first instance court by holding the dismissal to
be unfair given that the letter of dismissal did not adequately detail
the alleged conduct as it did not indicate the specific threats or
insults made by the worker or when they had taken place.
The company cited a judgment of the High Court of Justice of Galicia,
which held the content of a similar letter to be sufficient in
proceedings related to a disciplinary dismissal due to verbal offenses
and threats towards fellow colleagues. The level of specificity in both
cases was similar: neither letter detailed the specific dates or
circumstances.
The Supreme Court (“SC”)
rejected the appeal as it found it to be inconsistent with the SC’s
unified doctrine regarding the extent to which the facts underlying a
dismissal must be detailed. According to the SC’s doctrine, although
article 55.1 of the Statute of Workers does not require a detailed
description of the breaches giving rise to a dismissal, it nevertheless
requires that the dismissal letter clearly and unequivocally communicate
to the worker the breaches he or she is accused of so that the worker
can understand their scope without any reasonable doubt and thus
challenge the decision based on evidence. The SC stated that this
objective is not achieved if the letter of dismissal only contains
generic and unspecified charges.
The SC held that the dismissal letter did not contain facts but only
general references to harassment, verbal abuse, threats and attacks, and
was not specific in terms of content and circumstances, rendering it
impossible for the worker to prepare an effective defence or evaluate
their severity.
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4. A COLLECTIVE REDUNDANCY IS LEGAL EVEN IF THE
COMPANY REFUSES TO NEGOTIATE BECAUSE ITS SITUATION IS UNVIABLE
Judgment of the National Court dated 20 March 2013
In this case the claimants argued that the company had not negotiated
in good faith as it was never open to the possibility of reversing its
decision to dismiss all the employees, limit its effects or even improve
the compensation offered to the employees. The company argued that its
situation was so unworkable that it had no alternatives other than those
discussed in the negotiation meetings.
The National Court (“NC”)
referred to the Supreme Court’s case law that holds that the negotiation
period is an integral part of collective negotiations and for that
reason there is a duty to negotiate in good faith and as a consequence
make proposals and counter-proposals. The NC went on to say that the
judgment of the High Court of Justice of Madrid dated 30 May 2012
established that if there was no negotiation because the company simply
set out its intention to carry out a collective redundancy and pay the
minimum statutory compensation, the dismissal must be declared null.
The NC highlighted that while it is true that the negotiation period
is an occasion to discuss the various proposals of both parties, it does
not mean that agreements must be reached. Thus, if the company’s
situation is so dire that the only way out is its closure, as it was in
the case, then arguing that the company’s closure and, consequently, the
collective redundancy, are the only solution is not a demonstration of
bad faith.
Thus, the NC held that the company’s refusal to reverse its decision
to dismiss all of its employees, to reduce the effects of the
redundancies or to improve the compensation it was offering, bearing in
mind that the company was about to begin insolvency proceedings that
eventually concluded with its liquidation, did not breach the
requirement to negotiate in good faith in the collective negotiations.
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5. DISMISSAL FOR INDUSTRIAL ESPIONAGE
Judgment of the High Court of Justice of the Balearic Islands
dated 19 December 2012
The appellant in this case was a reception manager who was dismissed
by his employer on disciplinary grounds.
At first instance it was proven that the employee’s brother, who
worked for the same company, had placed an audio recording device in the
company’s meeting room in order to record the company’s management
committee meeting. The day after the meeting, whilst the employee’s
brother stood outside to make sure no-one entered the meeting room, the
employee tried to recover the recording device from the room but could
not find it because a member of the company’s management committee had
seen the device on the day of the meeting and removed it.
The employee appealed the first instance decision rejecting his
unfair dismissal claim by arguing that he had been dismissed as a result
of his brother’s actions and that he had not breached his obligations
towards his employer. He admitted to accompanying his brother to the
meeting room but claimed that he was unaware of his brother’s unlawful
intentions. He therefore alleged that his actions did not involve a
breach of his contractual good faith obligations and that there was no
proof that he was involved in placing the recording device in the
meeting room.
The High Court of Justice of the Balearic Islands held that the
employee’s appeal had to be rejected as it must be based on the facts
proven at first instance. In the first instance judgment, it was proven
that when the member of the company’s management committee saw the
device, he turned the device on and along with his colleagues heard and
recognised both brothers’ voices testing the device. The High Court of
Justice of the Balearic Islands added that even though the recording was
not heard or put forward in the first instance proceedings, which meant
that the employee could not defend his position, the first instance
judge had formed his or her opinion on the basis of the witness
statements of the members of the company’s management committee.
The High Court of Justice therefore confirmed that not only did the
appellant accompany his brother but he also helped position the
recording device. These facts led it to conclude that given that the
purpose of the appellant’s actions was to listen to a private company
meeting, he had breached his contractual good faith obligations.
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6. SOCIAL SECURITY FRAUD FOLLOWING THE REFORM OF THE
CRIMINAL CODE
Judgment of the Provincial Court of Granada dated 8 March 2013
In this case it was proved that one of the accused devised a plan
with his friends and relatives (also among the accused) to fraudulently
obtain unemployment benefits. The benefits were obtained through a
business structure that was set-up to defraud the Spanish Public
Employment Service and the Social Security General Treasury. An
unspecified amount was paid by the supposed employees.
The accused registered a scrap metal dealer and a drug addict (without
their knowledge) as fictitious entrepreneurs. The accused feigned an
employment relationship, and proceeded with various social security
registrations, while also ensuring the entrepreneurs had been registered
for a sufficient period to claim unemployment benefits. The social
security contributions were never made. Subsequently, the accused
feigned the termination of the employment relationship to obtain
unemployment benefits, while at the same time ensuring that the
qualifying period had been met to obtain future social security benefits
for temporary or permanent incapacity, maternity, retirement, and
widowhood.
The Provincial Court of Granada (“PCG”)
acquitted the scrap metal dealer and the drug addict of falsifying
documentation and fraud pursuant to the doctrine of the Constitutional
Court, which states that an individual cannot be convicted if he/she has
not been charged, and also on the grounds that the public and private
prosecutors had withdrawn their accusations against the two individuals.
The PCG held that the accused had defrauded Social Security pursuant
to the new drafting of the Criminal Code as a result of Basic Law 7/2012
of 27 December, and also section 307 b 1 of the Criminal Code which is
retroactively applicable and therefore more favourable for the accused.
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7. REFUSAL TO UNDERGO MEDICAL EXAMINATIONS IS A
GROUND FOR DISMISSAL
Judgment of the High Court of Justice of Extremadura dated 5
February 2013
A security guard repeatedly refused to undergo the medical
examination that his employer’s client required of workers.
The worker’s tasks involved guarding the client’s premises alone, in
a deserted location, and at night. The worker’s employer decided to
dismiss him due to his refusal to take the medical examination. The
judge at first instance held that the dismissal was fair.
The High Court of Justice of Extremadura (“HCJE”)
found that in this case, taking into account the conditions in which the
worker had to provide his services (at night, alone and in a deserted
location) and the fact that he suffered from hearing difficulties,
created an exception to the voluntary nature of medical examinations.
This exception falls under article 22.1 of the Law on the Prevention of
Occupational Hazards as in this case it was necessary to ascertain if
the worker's health could endanger either himself, other workers, or
indeed other people related to the company.
As the order for the worker to undergo the medical examination and
the consequences of not doing so (i.e., the potential loss of the
employer’s clients, the company’s liability should the worker suffer an
accident at work, and the potential risks for third parties) were lawful
and justified, the court held that the worker’s dismissal was an
appropriate sanction for his refusal.
The HCJE upheld the first instance decision that found the dismissal
to be fair.
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1.
THE CRITERIA TO CALCULATE THE CONTRIBUTION PERIOD FOR PART-TIME WORKERS
TO QUALIFY FOR A RETIREMENT PENSION ARE UNCONSTITUTIONAL