1. COURT AUTHORISATION FOR E-MAIL INTERCEPTIONS REGARDING CRIMINAL OFFENCES
Judgment of the Supreme Court dated 16 June 2014
The Criminal Chamber of the Supreme Court (“CC”) heard a proceeding that had been initiated by a company against one of its employees for the offences of fraud and forgery. The employee, who was in charge of paying suppliers, had duplicated several suppliers’ invoices, and paid himself part of the invoiced amount with the consent of one of the suppliers.
The defendant alleged that his right to due process had been breached because the incriminating information had been intercepted without court authorisation, and that the information had been obtained from his work e-mails and from a hard drive that remained under the company’s control.
The CC rejected the defendant’s allegations on the ground that there was sufficient incriminatory evidence to prove the company’s allegations. Nevertheless, it decided to clarify its position on the interception of work communications.
The CC moved away from the Labour Chamber’s underlying principles by declaring that the interception of communications without court authorisation is illegal.
The CC held that the ownership of the communication tool (in this case, the company’s computer), the communication channel (work e-mail), and when and where the communication took place (in the workplace during working hours) were irrelevant given that article 18.3 of the Spanish Constitution (the right to the secrecy of communications) does not provide any exception to the rule that a court authorisation is required in order to intercept communications.
The CC rejected the possibility that the defendant had tacitly waived his right to the secrecy of communications as the Spanish Constitution does not provide for this possibility (unlike the right to the inviolability of the home, as established in article 18.2 of the Spanish Constitution), and also because the defendant would have had no intention of waiving this right given his position as defendant.
The justification of the CC’s underlying principles is founded on the literal interpretation of the right to the secrecy of communications, the fact that the sender or recipient of the communications is defenceless because the interception of the communications is not known, and the right to the secrecy of communications of those third parties who have sent or received communications to or from the defendant, given that there is no legal justification for infringing their rights.
The CC excluded the traffic data that did not form part of the content of the communications from the scope of this protection. Such data are protected by articles 18.1 (the right to privacy) and 18.4 (data protection) of the Spanish Constitution, along with the e-mails that had already been received and opened by the addressee.
2. DEFAULT INTEREST IN WAGE CLAIMS
Judgment of the Supreme Court dated 17 June 2014
The Labour Chamber of the Supreme Court (“LCSC”) clarified its position concerning default interest in wage claims, and the interest rate applicable to those claims, following a worker’s claim against his employer (a bank) for unpaid variable salaries.
The LCSC changed its approach as regards default interest. In the past, the LCSC would only order that default interest be paid in proceedings where the court upheld the claim in full, or when the debt claimed was acknowledged and agreed to by the parties.
The LCSC followed the approach of the Civil Chamber of the Supreme Court, which accepts payment of default interest when the court has totally or partially upheld the claim. The rationale behind this is that the compensation sought will not be complete if the interest generated by the debt is not paid. Thus, the claimant was entitled to interest from the date the lawsuit was filed.
The LCSC clarified that the interest rate for claims for payment is determined by the nature of the debt. The LCSC applied article 29.3 Statute of Workers to wage claims despite it establishing a higher rate (10% annually) than the legal interest rate and inflation. This is due to the imperative nature of the rule and because the aim of the legislator was to offer additional protection to workers. The LCSC stated that the legal interest rate set out in article 1108 of the Civil Code applies to debts not related to wages.
3. COLLECTIVE DISPUTE PROCEEDINGS STAY INDIVIDUAL PROCEEDINGS
Judgment of the Supreme Court dated 15 July 2014
This appeal to the Supreme Court (“SC”) arose from an individual claim for a payment calculated on the basis of an employee’s length of service in the company. She claimed that the time she worked in the company under several training contracts should be taken into account for length of service purposes. A collective dispute proceeding on the same subject matter was on-going at the time the individual claim was filed.
Although the lis alibi pendens doctrine (regulating the jurisdictional relationship of courts hearing concurrent proceedings involving the same or a related cause of action between the same parties and which leads to the stay of the proceedings in any court other than the court first seized) is not foreseen in collective disputes and individual proceedings, the SC held that (i) collective dispute proceedings still stayed the related individual proceedings because of the principle that a final judgment of a competent court is taken for truth in any subsequent litigation involving the same cause of action (res judicata); and (ii) the object of the collective dispute proceedings could be frustrated if the individual proceedings were not stayed.
The Labour Chamber of the SC held that article 160.5 of the Labour Procedure Law establishes that the res judicata principle has an effect on subsequent decisions and thus any related individual proceedings must be stayed until a final judgment has been issued in the collective dispute proceedings.
The SC upheld the appeal and stayed the individual proceeding until the collective dispute proceeding was resolved.
4. BUSINESS UNIT RESTRUCTURING DEEMED VALID EVEN THOUGH SUBSIDIARIES SHARE SERVICES WITH PARENT COMPANY
Judgment of the Supreme Court dated 3 September 2014
This appeal to the Supreme Court (“SC”) analysed the validity of a corporate restructuring in which RENFE transferred its rail freight business to three of its subsidiaries. This restructuring was intended to improve the operating income of the company.
The CCOO, CGT and SEMAF unions challenged the transfer of the business and the consequent transfer of its employees to the three subsidiaries on the ground that the businesses transferred were not economically independent, and therefore the parent company had illegally transferred its employees to its subsidiaries.
The SC held that there was enough evidence to confirm the existence of an economically independent business unit. The SC considered that it had been evidenced that the parent company had transferred all the essential assets required, such as train carriages, freight containers, employees, and the customer portfolio, which permitted the independent provision of services.
The parent company’s provision of traction services to the subsidiaries and the existence of intra-group services such as the legal department, IT department, as well as shared insurance policies, were not deemed factors sufficiently relevant to render the transfer invalid. The SC also took into account the regulations applicable to the railway sector, which distinguish between companies that provide transport for goods or passengers, and those which only provide traction services. In this case, the parent company could be categorised in the second group, and therefore the subsidiaries were able to provide different services. The SC rejected the allegation that the transfer of the employees was illegal as a result of the transfer of the business.
The SC dismissed the appeal and upheld the decision of the court of first instance that held that the restructuring of the business was indeed valid.
5. THE SUSPENSION OF EMPLOYMENT CONTRACTS AND THE REDUCTION OF WORKING HOURS ARE DECLARED NULL DUE TO BAD-FAITH NEGOTIATIONS AND THE FAILURE TO NOTIFY THE EMPLOYEE REPRESENTATIVES
Judgment of the National Court dated 13 June 2014
The National Court (“NC”) analysed a challenge submitted by trade unions in response to a company’s measures to suspend employment contracts and reduce working hours in relation to three of its work places. The company established these measures after the consultation period had ended without an agreement between the parties. A few days later, the company voluntarily filed for insolvency. After a short period of time, the Commercial Court issued a decision according to which the company would be liquidated, therefore extinguishing all employment contracts.
The NC declared the company’s measures to suspend the employment contracts and reduce working hours to be null. The NC based its decision primarily on two grounds:
The irregular creation of the negotiation committee: the company had three different work places, of which only two had employee representatives, to whom the commencement of the consultation period was communicated. The third work place did not have an employee representative, and it was evidenced that the company had not informed the workers of the commencement of the consultation period, which impeded the election of ad hoc representatives and, consequently meant that the workers were not represented during the consultation period. The NC concluded that the aim of collective negotiations (to adjust the measures and reduce their impact) had not been reached in this case, as the company had impeded the collective negotiations on the suspension of the contracts and the reduction of working hours.
Bad faith: the NC upheld the claim that the company had negotiated in bad faith since, after establishing measures to reduce working hours and suspend employment contracts, it voluntarily filed for insolvency, leading to the liquidation of the company and extinguished employment contracts, when only a brief period of time had lapsed without any new economic or financial change affecting the company. The NC held that the utility of the measures had not been evidenced given that the company was facing imminent liquidation, which inferred that the negotiations had been fraudulent.
Consequently, the NC ruled in favour of the workers and annulled the company’s measures to suspend the employment contracts and reduce the working hours.
6. INCLUDING VARIABLE REMUNERATION IN HOLIDAY PAY
Judgment of the National Court dated 17 September 2014
In the context of a collective dispute claim, the National Court (“NC”) analysed the inclusion of salary supplements in the calculation of holiday pay (despite being excluded under the applicable collective bargaining agreement) to bring Spanish law into line with the case law of the Court of Justice of the European Union (“ECJ”).
Until now, the Spanish Supreme Court had ruled that this issue should be analysed pursuant to Convention 132 of the International Labour Organization, which provides that holiday pay should be calculated according to the national law of each country. As such, the Supreme Court had held that collective bargaining agreements could exclude variable remuneration, or part of it, from the calculation of holiday pay.
The NC held that this case law was contrary to the ECJ’s interpretation of Directive 2003/88/EC, and specifically that of article 7.1, which states that Member States must adopt the necessary measures to guarantee the right to remunerated annual leave. This article must be interpreted from a double perspective to include not only the right to annual leave but the right to remunerated annual leave, where the remuneration taken into account is ordinary remuneration. The ECJ held that variable remuneration is included within the scope of ordinary remuneration to ensure it does not become less attractive to take holidays than to work.
The NC extended this principle to all variable salary supplements linked to the ordinary working period, and held that a collective bargaining agreement that excludes certain supplements from this calculation does not apply by virtue of the primacy of EU law. Thus, the NC held that that all salary supplements, both those included and excluded by a collective bargaining agreement, must be included in the calculation of holiday pay.
The NC upheld the claim and ordered the company to include all salary supplements in the calculation of the employees’ holiday pay, and thus ruled that the collective bargaining agreement was not applicable in this regard.
7. VALIDITY OF VIDEO RECORDINGS AND “WHATSAPP” TRANSCRIPTS AS EVIDENCE IN DISCIPLINARY DISMISSAL PROCEEDINGS
Judgment of the High Court of Justice of Galicia dated 25 April 2014
The proceedings arose from the disciplinary dismissal of a nurse based on serious misconduct for abandoning her duties and responsibilities.
The nurse worked in a home for the elderly. Her duties included preparing the medication that the nursing assistants gave to the patients. On the day in question, a patient ate a yoghurt containing psychiatric medication intended for another patient. The erroneous medication led to the patient suffering from intoxication and drowsiness. She was kept under surveillance for 24 hours until her complete recovery.
After studying the day’s video recordings, and gaining access to a “whatsapp” conversation between the nurse and another colleague, the company dismissed the nurse for neglecting her duties.
The nurse’s claim for unfair dismissal was rejected after which the nurse appealed to the High Court of Justice of Galicia (“HCJG”). Among other issues, the HCJG addressed the violation of the nurse’s right to privacy based on video recordings used to evidence the disciplinary action. The nurse claimed that the cameras had been installed in the nursing home without the employees’ knowledge. The nurse further alleged a violation of the secrecy of communications based on the transcript of a “whatsapp” conversation between the nurse and her colleague that was used as means to justify the dismissal.
The HCJG validated the legality of the company’s evidence and stated that such means did not violate the right to privacy or the right to secrecy of communications.
The decision was based on the following:
The HCJG rejected the nurse’s arguments regarding the secrecy of communications as the company was aware of the “whatsapp” conversation and obtained it from the colleague who was a party to the conversation. Therefore, the employer did not violate the nurse’s right to the secrecy of communications.
the express recognition of video recordings as a means of evidence set out in article 90 of the Labour Procedure Law;
the power to monitor and supervise pursuant to ex article 20.3 of the Statute of Workers, which allows employers to monitor employees’ compliance with their obligations, provided that the measure is appropriate for the intended purpose, cameras are not installed in private places and the recordings are not circulated; and
the lack of legal obligation to notify employees or employee representatives about the installation of cameras.
This decision upholds the first instance ruling and ratifies the disciplinary dismissal based on serious misconduct due to the nurse’s abandonment of her duties and responsibilities.