October 2013

LABOUR LAW


 1. EMPLOYMENT CONTRACTS OF PREGNANT WOMEN CAN BE TERMINATED DURING TRIAL PERIODS

The Constitutional Court 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.

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 2. CONTROL OF EMPLOYEES’ EMAILS

The First Chamber of the Constitutional Court considers controlling employees’ emails lawful, 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.

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 3. MEAL VOUCHERS

The Supreme Court clarifies the nature of meal vouchers in its judgment dated 3 of 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.

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 4. TERM TO SUBMIT THE REQUEST FOR CONCILIATION

The Supreme Court upheld in the judgment of 3 of June 2013 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 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.

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 5. COLLECTIVE BARGAINING AGREEMENT PROVISIONS DESIGNED TO IMPROVE WORKING CONDITIONS ARE NOT ANTICOMPETITIVE IF THEY ARE NOT INTENDED TO ALTER THE MARKET

The National Court dismissed the challenge of the Fifth Collective Bargaining Agreement for the Construction Sector. The lawsuit was filed by a group of training companies approved by the Construction Industry Employment Foundation (Fundación Laboral de la Construcción), which claimed that the Collective Bargaining Agreement introduced restrictive practices and its retroactive application was harmful to their interests.

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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 periods.

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.

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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 relationship.

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 interests.

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.

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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.

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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 requests.

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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 restrict competition.

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.

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The information contained in this Newsletter is of a general nature and does not constitute legal advice