1. EMPLOYMENT CONTRACTS OF PREGNANT WOMEN CAN BE
TERMINATED DURING TRIAL PERIODS
Judgment of the Constitutional Court dated 10 October 2013
The Constitutional Court (“CT”) establishes that the
special protection afforded to pregnant women against dismissals does
not apply during trial periods.
The question analysed in the appeal for legal protection is whether
the scope of the right to non-discrimination based on the grounds of sex
applies to pregnant women during trial periods. The CT stated that the
company’s termination of the contract will only be null if the decision
is discriminatory, thus requiring the company to have actual knowledge
of the employee’s pregnancy.
In this case, the claimant’s intention was to broaden the
interpretation and extend the concept of automatic nullity to contract
terminations during trial periods. However, as established in the
corresponding regulations, the ruling sets out the legal differences
between a dismissal and a company’s contract termination. These concepts
cannot be treated equally and, consequently, the automatic nullity of
the dismissal of pregnant women, whether or not the company is aware of
the pregnancy, does not apply to contract terminations during trial
Therefore, article 55.5.b) of the Statute of Workers, which
establishes that dismissals of pregnant employees are automatically null,
does not apply to contract terminations during trial periods, because
the legal nature of these situations is different. Contract termination
during trial periods will only be considered null if the employer’s
decision is adopted due to the employee’s pregnancy.
Four judges expressed a dissenting opinion in this case.
2. CONTROL OF EMPLOYEES’ EMAILS
Judgment of the Constitutional Court dated 7 October 2013
The Constitutional Court (“CT”) establishes that
control over employees’ emails is legal in employment relationships,
even when the employee has not been previously informed of the means of
control. The CT ruling is adapted from a provision in a collective
bargaining agreement prohibiting the use of the company’s electronic
means for personal purposes.
The ruling, which dismisses the employee’s appeal for legal
protection, analyses whether the company’s email control policy is
compatible with the constitutional rights to privacy and the secrecy of
communications. The issue to be decided in the case is the appropriate
boundary between an individual’s privacy and his/her employment
In addressing the issue, the CT states that employment contracts
cannot be considered legitimate means for employers to reduce employees’
constitutional rights. However, the CT then goes on to state that in the
case of employees’ forming part of a company, certain rights might have
to be adjusted if they come into conflict with important constitutional
In relation to the right to secrecy of communications, the CT lends
support to the employer’s power to control and manage employment
relationships. In this particular case, the use of electronic means
under the collective bargaining agreement is only permitted for
professional purposes, thus excluding its personal use. Based on this
exclusion, the employee could not expect a reasonable and justified
prospect of confidentiality in relation to his/her communications, given
that the means of communication falls within the employer’s control.
The CT falls back on similar reasoning when dealing with the right to
privacy. It alleges that the scope of protection is based on a
reasonable expectation of privacy, which in this case does not exist,
thus giving the company control.
In order to determine whether or not the measure is proportionate,
the CT carries out a proportionality test. This test entails checking
three conditions: suitability, necessity and proportionality stricto
sensu. The CT’s conclusion is that the control exercised by the
company is suitable as it is proportionate to the purpose intended; it
is also necessary as no other more moderate measure is available to
achieve the purpose; and the measure is reasonable and appropriate.
3. MEAL VOUCHERS
Judgment of the Supreme Court dated 3 October 2013
The appeal for the unification of doctrine was aimed at determining
whether or not meal vouchers should be considered as salary for the
purpose of calculating severance payments for unfair dismissals.
The Supreme Court dismissed the appeal for the unification of
doctrine because there was no contradiction between rulings and held
that meal vouchers can be considered as compensation if they are used to
cover employees’ food expenses when they are forced to eat out during
working days. However, they will be considered as salary when they are
paid regardless of the work carried out and its circumstances.
4. TERM TO SUBMIT THE REQUEST FOR CONCILIATION
Judgment of the Supreme Court dated 3 June 2013
The Supreme Court (“SC”) upheld the appeal for
unification of doctrine against the judgment of the High Court of
Justice of the Community of Valencia. The issue which gave rise to the
appeal was determining the possibility of applying article 135.1 of the
Spanish Civil Procedure Law (“SCPL”) to the due date of
the conciliation request. Specifically, the issue was whether or not the
conciliation claim can be submitted during the first 15 hours of the
21st day after the dismissal.
The SC resolved this point confirming the contrasting judgment and
arguing that, bearing in mind that the conciliation request is a first
action in the procedure, there are no grounded reasons why article 135.1
of SCPL cannot be applied. Consequently, the conciliation claim can be
filed during the period established in the abovementioned article.
In addition, the SC argued that the limitation period provided under
article 59.3 of the Statute of Workers (“SW”) for the
exercise of a dismissal action is suspended during the conciliation
process, so, in the absence of an agreement during the conciliation
hearing and provided that the conciliation claim was presented in
accordance with article 135.1 of SCPL, the dismissal claim should be
filed in the labour courts that same day.
The decision included a dissenting opinion which argued that the
period provided in article 59.3 of the SW is a substantive period and
not a procedural one. In addition, the dissenting opinion argued that
the conciliation request is not part of the dismissal procedure, but
merely an act prior to it. Consequently, the conclusion of this analysis
is that article 135.1 of the SCPL cannot be applied to conciliation
5. COLLECTIVE BARGAINING AGREEMENT PROVISIONS
DESIGNED TO IMPROVE WORKING CONDITIONS ARE NOT ANTICOMPETITIVE IF THEY
ARE NOT INTENDED TO ALTER THE MARKET
Judgment of the National Court dated 30 September 2013
In this judgment the National Court (“NC”) dismissed
the challenge by a group of training companies approved by the
Construction Industry Employment Foundation (Fundación Laboral de la
Construcción) against the Fifth Collective Bargaining Agreement for
the Construction Sector (the “Collective Bargaining Agreement”).
The companies claimed that it introduced restrictive practices and its
retroactive application was harmful to their interests.
The dispute centred around the new authorisation regime established
in the Collective Bargaining Agreement. Under the new rules, training
companies must have their own internal occupational hazards prevention
service or be incorporated as such. The claimants argued that this was
anticompetitive and contrary to their consolidated rights.
The NC first clarified that it is the labour courts that have
exclusive jurisdiction over cases concerning collective bargaining
agreements that restrict competition. In line with several judgments of
the European Court of Justice, the NC explained that certain restrictive
competition effects are inherent to collective bargaining agreements
between employees and employers. Moreover, the NC stated that collective
bargaining agreement provisions aimed at improving employment conditions
will not be considered anticompetitive. Determining whether a collective
bargaining agreement is designed to alter the market or to improve
employment conditions requires a detailed case-by-case analysis. In this
case, the NC held that the purpose of the Collective Bargaining
Agreement was to improve safety in the construction sector and not to
The claimants also argued that the retroactivity of the Collective
Bargaining Agreement created legal uncertainty for third parties. The NC
summarised the distinction between the three different kinds of
retroactivity, maximum, medium and minimum, and found that the
Collective Bargaining Agreement has minimum retroactivity. In other
words, the new regulation only has future effects, despite the
underlying relationship beginning under the previous regulations.
Consequently, the retroactivity is lawful and the Collective Bargaining
Agreement is valid. The claimants also argued that they had suffered a
loss of earnings but the NC held that there was only an expectation to
receive income and therefore the prohibition on retroactive application
did not apply.