1. APPROVAL OF THE CONSOLIDATED TEXT OF THE STATUTE OF WORKERS
Royal Legislative Decree 2/2015 of 23 October approving the consolidated text of the Statute of Workers
Royal Legislative Decree 2/2015 of 23 October has been passed pursuant to the provisions of Law 20/2014 of 29 October that authorised the Government to consolidate various laws including the Statute of Workers.
The aims of this consolidation are to: (i) update the wording and technical aspects of Royal Legislative Decree 1/1995 of 24 March, which approved the consolidated text of the Statute of Workers (“SW”); (ii) clarify and renumber some articles; and (iii) consolidate all the laws that have modified the SW in recent years into one text.
Some of the changes that the consolidated text has led to are the following:
- Special employment relationships (article 2 SW):
The special employment relationship of stevedores has been updated and the following three special employment relationships are now included in the SW:
- Those in young offender institutions.
- The residency period of trainee health science specialists.
- Lawyers employed by law firms.
- Causes and effects of suspension (article 45 SW):
Military service is no longer a ground to suspend employment contracts.
- Limitation period (article 60 SW):
The limitation period for breaches committed by employers is now regulated by the consolidated text of the Law on labour infringements and sanctions, whereas the previous drafting of the SW stated that the limitation period for breaches committed by employers was three years, unless they related to social security matters.
- Additional provisions (“AP”), transitional provisions (“TP”) and final provisions (“FP”):
In contrast to the articles above, the APs, TPs and FPs have been thoroughly restructured. APs 1, 3 and 16 have been eliminated, and a new AP 3 has been included on collective bargaining and permanent contracts for construction work.
Ten TPs have been added. In fact, only two remain in force from the SW (TP 2 on the legislation applicable to contracts prior to the entry into force of the SW, and TP 13 on compensation for terminating temporary contracts).
The final provisions have also been rearranged and FP 4 on contributions to the Salary Guarantee Fund (FOGASA) has been eliminated.
- Some terms have been updated, such as the “Labour Courts Law” (previously known as the Labour procedure Law).
2. APPROVAL OF THE CONSOLIDATED TEXT OF THE GENERAL SOCIAL SECURITY LAW
Royal Legislative Decree 8/2015 of 23 October approving the consolidated text of the General Social Security Law
Royal Legislative Decree 8/2015 rearranges, clarifies and consolidates in a single piece of legislation practically all the social security legislation that has been approved since the entry into force of the consolidated text of 1994. Only the special regulation applicable to maritime workers is excluded, which due to its specificity has been set out in Law 47/2015 of 21 October.
The new provisions introduced by this Royal Legislative Decree include the following:
- The rearrangement of the General Social Security Law (“GSSL”) into six titles. The three new titles are the special regulation applicable to self-employed workers (new title IV), protection in the event of the cessation of activities (new title V) and non-contributory pensions (new title VI).
- Article 16 includes an express reference to the fact that employers will have to verify that all their contracted workers are registered with the Social Security before they begin to work.
- Article 20 sets out the conditions to obtain, continue to receive, lose the right to, and to pay back any discounts to social security contributions.
- Article 58 includes provisions regarding the pensions’ revaluation index.
- Article 71 now regulates the submission of medical data to public entities that are in charge of authorising the right to receive, or to continue to receive, benefits.
- For the purposes of managing the Social Security’s resources, companies must submit data to the Social Security by electronic means when requested by the Employment and Social Security Ministry.
- Title II of the GSSL includes a new subsection on social security contributions for special cases such as short-term contracts, workers aged 65 or above, and when a person still works while receiving a pension.
- Chapter XIII of title II (on contributory pensions) includes the changes introduced by Law 23/2013 of 23 December regulating the long-term viability and revaluation index of the Social Security pensions system, and by Royal Decree 5/2013 on measures to encourage longer working lives and to promote active aging.
In particular, two new provisions are included. Article 211 establishes specific provisions regarding the long-term viability of retirement pensions, and article 214 sets out provisions regarding retirement pensions and active aging.
- Chapter V introduces new provisions regarding unemployment benefits applicable to: (i) employees included in the special system for agricultural workers; (ii) trainees and apprentices; (iii) maritime workers; and (iv) military personnel.
3. LABOUR ASPECTS OF THE NATIONAL BUDGET FOR 2016
Law 48/2015 of 29 October on the National Budget for 2016
Article 36 of Law 48/2015 of 29 October on the National Budget for 2016 (“2016 BL”) establishes a 0.25% increase in social security pensions and state pensions for civil servants.
The following state pensions will not be increased:
- Pensions regulated under article 42 of Law 37/1988 that exceed EUR 2,567.28 per month;
- Pensions paid to state road builders who were receiving state pensions for civil servants before 1 January 1985; and
- Pensions awarded to civil servants under the Civil Service Mutual Insurance Fund who on 31 December 2015 already reached the amounts that were established on 31 December 1973.
Article 39 of the 2016 BL establishes the maximum monthly state pension at EUR 2,567.28 when a pensioner receives 14 payments per year. However, if a pensioner is entitled to receive more or less than 14 payments (including extraordinary payments), the monthly limit must be adjusted so that the annual EUR 35,941.92 limit is not exceeded.
The 2016 BL also sets out the minimum state contributory pensions. Articles 43 and 44 of the 2015 BL regulate the supplementary payments made for those who receive less than EUR 7,116.18 in 2016. The BL includes two annexes that set out the minimum state contributory pensions for civil servants and the social security contributory pensions.
The 2016 BL sets social security non-contributory retirement and disability pensions at an annual rate of EUR 5,150.60 It also establishes an annual supplementary payment of EUR 525 for pensioners who do not own a home and live in rented accommodation that is not owned by a relative.
From 1 January 2016, pensions under the compulsory pension and disability insurance scheme (which is now fading out) will amount to EUR 5,698.00 per year if a recipient does not receive any other state pension.
3.2 Social security contributions
Title VIII of the 2016 BL establishes the bases and rates for social security contributions, unemployment, protection from the cessation of activities, the Salary Guarantee Fund (FOGASA), and professional training in 2016, as well as the maximum and minimum social security contribution bases.
3.2.1 Maximum and minimum contribution bases
From 1 January 2016, the maximum contribution base for all Social Security schemes will be EUR 3,642 per month or EUR 121.40 per day; an increase of 0.99% from the previous year.
From 1 January 2016, the minimum contribution bases for the Social Security schemes will increase in line with the national minimum wage. Unless stipulated otherwise, it will increase by one-sixth. The minimum contribution currently stands at EUR 756.7 per month.
Moreover, the 2016 BL states that under the General Regulation, the minimum contribution bases will increase by the same percentage as the national minimum wage as of 1 January 2016.
Under the Special Regulation for the Self-Employed the minimum contribution base will be EUR 893.10 per month.
3.2.2 Contribution rates
Contribution rates will stay the same as in 2015 under the Social Security General Regime.
- Common contingencies: 28.30%, of which 23.60% will be paid by the employer and 4.70% by the employee.
- Work accidents and professional illnesses: the percentage premiums in additional provision 4 of Law 42/2006 of 28 December on the National Budget for 2007 will apply and will be payable by the employer.
- Overtime due to force majeure: 14%, of which 12% will be paid by the employer and 2% by the employee.
- Overtime due to any other reason not falling under the previous paragraph: 28.30%, of which 23.60% will be paid by the employer and 4.70% by the employee.
- Unemployment: 7.05% for permanent employees, 5.50% of which will be paid by the employer and 1.55% by the employee. For temporary contracts the rate will be 8.30%, the employer will pay 6.70% and the employee 1.60%.
- The Salary Guarantee Fund (FOGASA): 0.20%, which is fully payable by the employer.
- Professional training: 0.70%, of which 0.60% will be paid by the employer and 0.10% by the employee.
3.2.3 Reduction in social security contributions for employees who change posts owing to health and safety risks during pregnancy, breastfeeding or due to an occupational illness.
Additional provision 86 of the 2016 BL establishes that if an employee has to change her post due to health and safety risks during pregnancy or breastfeeding, the employer’s social security contributions for common contingencies will be reduced by 50% while the employee has the new post. The same reduction will apply when an employee has to change posts owing to an occupational illness.
This provision was also in the national budget for 2015.
3.3 Official rate of interest
The official rate of interest is set at 3% until 31 December 2016, which is 0.5% less than 2015. The interest for late payment referred to in the General Tax Law and the General Subsidies Law is 3.75%.
The National Indicator of Earnings (“IPREM”) for 2016 will be as follows:
- EUR 17.75 per day
- EUR 532.51 per month
- EUR 6,390.13 per year
Whenever reference to the national minimum wage is replaced by the IPREM, the annual amount will be EUR 7,455.14 unless special extraordinary payments are expressly excluded, in which case the annual amount will be EUR 6,390.13.
3.5 Legislative measures
Law 27/2011 on updating, adapting and modernising the Social Security system
The application of additional provision 28 of Law 27/2011 on the compulsory military service period for the purpose of social security calculations has been postponed.
Final provision 12 of Law 27/2011 has been redrafted. As a result, on 1 January 2017 final provision 10 will enter into force, amending Law 20/2007 of 11 July on the Self-Employed Worker’s Statute regarding part time work.
Incentives to hire permanent seasonal employees in the tourism, hospitality and commerce sectors linked to tourism activities.
From 1 January 2016 until 31 December 2016, companies which: (i) carry out activities in the tourism, hospitality and commerce sector, (ii) create productive activity in February, March and November of each year; and (iii) employ seasonal workers during those months, could deduct 50% from their social security contributions for common contingencies, and for the contingencies regarding unemployment, the Salary Guarantee Fund (FOGASA) and the professional training of those employees. This incentive does not apply to companies in the public sector.
Financing professional training for employment
Additional provision 91 of BL 2016 establishes that funds for professional training must be used to finance the training system for employment. In addition, those companies that make social security contributions towards the professional training contingency will receive credit for their employees’ training (the amount will depend on the number of company employees).
Recognition of a maternity pay supplement
Final provision 2 of BL 2016 amends the Consolidated Text of the General Social Security Law. A pension supplement will be granted to women who have biological or adopted children and are beneficiaries of the following Social Security contribution-based pensions: retirement, widowhood and permanent disability.
The supplement, which will be considered a contributory state pension, will be calculated by applying a percentage (depending on the number of children) to the initial pension:
- 2 children: 5%
- 3 children: 10%
- 4 children or more: 15%
In determining the right to the supplement, as well as its amount, only those children born or adopted prior to retirement, widowhood or permanent disability will be taken into consideration.
This supplement will not be granted when a woman voluntarily accepts early retirement or partially retires. In the latter case, a supplement will be paid when she reaches the requisite age to fully retire in each case.
Meaning of: “personnel who work exclusively in offices”
Final provision 8 of BL 2016 defines the occupation referred to in letter “a” of Table II of Law 22/2013 of 23 December on the National Budget for 2014 as: “personnel who work exclusively in offices”, to whom a contribution rate of 1% is applied.
“Personnel who work exclusively in offices” means employees who only carry out office duties. These tasks must be performed in offices.
Law 9/2009 of 6 October on extending paternity leave to four weeks will not enter into force until 1 January 2017. Paternity leave entitlement will therefore remain at 13 days until 31 December 2016.
4. APPROVAL OF THE CONSOLIDATED TEXT OF THE EMPLOYMENT LAW
Royal Legislative Decree 3/2015 of 23 October approving the Consolidated Text of the Employment Law
Royal Legislative Decree 3/2015 of 23 October (“RLD”) consolidates the employment law without introducing substantial changes. It aims to simplify the legal framework and facilitate employees in exercising their rights.
- Integrates some additional and final provisions of Law 56/2003 of 16 December on Employment.
- Uses the terminology of Law 30/2015 of 9 September, which regulates the professional training scheme for employment. It removes the reference to “on-going training” and substitutes it with the expression “professional training for employment.”
- Incorporates final provision 1 and the final paragraph of temporary provision 2 of Royal Legislative Decree 3/2011 of 18 February on urgent measures to foster employability and reform active employment policies.
- Includes the change announced in additional provision 15 of Law 3/2012 of 6 June on urgent measures for labour market reform which refers to the continuous assessment of active employment policies to guarantee further transparency.
- Includes some of the wording of Law 35/2010 of 17 September on measures for labour market reform.
- Changes the name Labour Affairs Conference to Employment and Labour Affairs Conference.
- Repeals Law 53/2003 of 16 December on Employment and the aforementioned provisions.
5. CIVIL PROCEDURE LAW REFORM
Law 42/2015 of 5 October amending Law 1/2000 of 7 January on civil procedure
Law 42/2015 (the “Law”), which is of secondary application to Law 36/2011 of 10 October on the labour jurisdiction, prioritises electronic means over paper form to process legal proceedings.
All professionals working in the justice system must now submit documents using electronic means. The purpose of this measure is to (i) guarantee that the documents submitted are authentic and (ii) evidence that the documents have been delivered and received and the date and time of delivery and receipt.
The documents must include a case number and year, and be numbered in an electronic index so that they can be located and consulted. An electronic signature is required to submit the documents.
Documents can now be submitted at any time of day 365 days of the year. If they are submitted on non-working days or outside working hours, they will be considered to have been submitted on the next working day for procedural purposes.
A grace period of one day applies to documents submitted electronically. Documents may be submitted before 3 pm on the working day following the date on which the deadline expires.
Those who do not comply with the obligation to submit documents electronically are given a five-day extension to do so. If the documents are still not submitted electronically by this deadline, they will not be considered submitted.
Who this reform applies to
All professionals working in the justice system must use the electronic means available. However, individuals and entities not represented by a court agent can choose to either submit documents in paper form or electronically, unless they are expressly obliged to do so electronically.
The following entities and individuals must submit documents electronically
- Legal entities
- Entities without legal personality
- Professionals who must be members of a professional association in order to act before the justice system in their professional capacity
- Notaries and registrars
- Those who represent someone who must communicate with the justice system electronically
- Civil servants acting in their professional capacity
However, documents may still be submitted in paper form
- By individuals who are not obligated to use the electronic system and have opted not to do so.
- When the document cannot be converted into electronic format.
- When expressly provided by law
Those who are obligated to or have opted to use electronic means must also use them to receive communications. To this end, recipients will be able to specify the mode of delivery: (i) through an electronic device, (ii) by an ordinary courier service or (iii) by email. An electronically-accessible record containing the addresses of all the public and professional entities that are obligated to use electronic or similar means of communication will also be created in the Ministry of Justice.
If recipients do not access the communication within three days of it being available, it will be considered to have been made for all legal purposes, unless the recipients can justify why they did not access it. Technical problems are a valid reason, in which case the communication must be sent to the recipient. This does not apply to communications made through the notification services of court agent professional associations.
Communications in August
Electronic communications cannot be made in August, unless any days are considered working days for specific types of actions.
The Law makes a distinction between scheduled and unscheduled disruptions. In the latter case, the right measures must be in place to make sure users are aware of the disruption and its effects. In addition, the parties affected by a disruption may submit the relevant documents the following working day together with written proof of the service disruption. The justice system must notify scheduled service disruptions in advance.
The Law also clarifies how to proceed when the volume of documents to be submitted is too large. In this case, documents may have to be filed with the court office in an electronic medium that same day or the following working day together with written proof of having unsuccessfully tried to submit it electronically.
Entry into force
The Law entered into force on 7 October. However, the provisions on electronic submissions by professionals working in the justice system and individuals and entities not represented by a court agent will not enter into force until 1 January 2016 and 1 January 2017 respectively.
6. ADMINISTRATIVE PROCEDURE LAW REFORM
Law 39/2015 of 1 October on the standard administrative procedure of public authorities
Law 39/2015 (the “Law”) repeals Law 30/1992 of 26 November on public authorities and the standard administrative procedure, and removes the obligation to first file an administrative complaint before a claim can be brought before the labour courts.
The Law modifies several articles of the Labour Courts Law according to which an administrative complaint had to be filed before a claim could be brought before the labour courts against the state, autonomous regions, local authorities or public law entities.
However, it does not affect proceedings regarding social security benefits, to which this requirement still applies.
The Law states that the following are regulated by their corresponding legislation and subsidiarily by this Law: (i) actions and proceedings to manage, inspect, request payments for, collect payments for, challenge and review social security and unemployment matters and (ii) labour sanctions and proceedings.
The Law enters into force on 2 October 2016.
7. MODIFICATION TO THE EMPLOYEE-OWNED COMPANIES LAW
Law 44/2015 of 14 October on employee-owned companies
Following on from the latest commercial and corporate law reforms, Law 44/2015 of 14 October on employee-owned companies updates Law 4/1997 of 24 March, and also reinforces the nature, function and features of employee-owned companies as a type of social economy entity.
The changes include: (i) improving the legal system applicable to employee-owned companies to encourage employee participation and (ii) introducing new measures to guarantee employee control over employee-owned companies and to increase the usefulness of such companies.
Law 44/2015 entered into force on 14 November 2015.
8. EQUALITY IN THE WORKPLACE CERTIFICATE
Royal Decree 850/2015 of 28 September amends Royal Decree 1615/2009 of 26 October on granting and using the equality in the workplace certificate
The objective of Royal Decree 850/2015 is to adapt the requirements imposed on companies and the assessment criteria to obtain the equality in the workplace certificate.
The following changes have been made to the general requirements
- The period of time in which companies must not have been sanctioned (irrevocably) for serious breaches of the non-discrimination and equal opportunity laws has been reduced from three years to two years.
- Companies must not have been sanctioned for committing serious or very serious breaches of equal opportunities and non-discrimination laws for accessing goods and services.
- An equality plan should have been implemented at the time that companies were required to implement one. Royal Decree 1615/2009 only referred to the need to “have begun” to implement it.
- The incorporation of monitoring and evaluation systems for equality plans must be proven.
- The presence of women in governing bodies must be proven in the terms set out in the Consolidated Text of the Companies Law.
New facets have been included in the assessment criteria, among other things, that consideration will be given to quality certificates companies have received for work-life balance.
Royal Decree 850/2015 entered into force on 14 October 2015.
9. NEW USE FOR THE SINGLE ELECTRONIC DOCUMENT
Royal Decree 867/2015 of 2 October, which regulates the use of the Single Electronic Document to cease the activity of and close limited liability companies and sole traders.
The aim of Royal Decree 867/2015 is to simplify the process of closing a company. The Single Electronic Document allows sole traders and limited liability companies to carry out the formalities to cease their activities and close their companies online.
This Royal Decree enters into force on 16 April 2016.
10. COMPENSATION FOR UNFAIR DISMISSAL WITHIN THE FRAMEWORK OF A RESTRUCTURING PROCESS
Judgment of the Court of Justice of the European Union dated 15 October 2015 (cases 352/14 and 353/14)
In cases C-352/14 and C-353/14 Labour Court no. 2 of Terrassa asked the Court of Justice of the European Union (“CJEU”) to issue a preliminary ruling in the context of unfair dismissal actions brought by two ex-employees of Bankia.
Specifically, the CJEU examined whether the European Commission’s Decision approving the aid granted by the Spanish authorities for the restructuring and recapitalisation of Banco Financiero y de Ahorro SA and its subsidiary Bankia (“BFA Group”), and Articles 107 and 108 of the Treaty on the Functioning of the European Union (“TFEU”), are contrary to article 56 of the Spanish Statute of Workers, the fifth transitory provision of Law 3/2012 and articles 123 and 124.13 of the Labour Courts Law.
The Commission approved the restructuring plan in a Decision dated 28 November 2012, highlighting that one of the commitments the Kingdom of Spain had given was that the BFA Group “will [meet] the applicable legislation in all salary and compensation matters” and “will [ensure] that the restructuring process is very demanding, seeking that severance [payments] approach... the legal minimum, but with some flexibility to avoid delaying the process”.
Once the restructuring plan was implemented, the BFA Group reached an agreement with its employee representatives pursuant to which employees who were made redundant would receive an average compensation equal to 30 days’ remuneration per year of service.
Two of the employees who were made redundant sued for unfair dismissal. They sought to obtain the minimum statutory compensation, equivalent to 45/33 days’ remuneration per year of service.
The CJEU ruled that
- The amounts to be paid to the employees may be calculated in accordance with the provisions of Spanish labour law.
- The Commission’s Decision allowed for some flexibility, meaning that although the amounts which the BFA Group had to pay its employees in the context of its restructuring plan must be close to the minimum amounts provided for by the national labour law rules, they do not necessarily have to correspond exactly to those amounts.
Therefore, the CJEU ruled that Commission Decision C(2012) 8764 final of 28 November 2012 concerning the aid granted by the Spanish authorities for the restructuring and recapitalisation of the BFA Group, and Articles 107 TFEU and 108 TFEU, which form the basis for that decision, do not preclude the application, in proceedings relating to a collective redundancy that is within the scope of that decision, of national legislation under which the compensation payable to an employee whose dismissal is held to be unfair is set at an amount higher than the legal minimum
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11. FRENCH YOUNGSTERS WHO WORK DURING THEIR SCHOOL OR UNIVERSITY HOLIDAYS ARE NOT ENTITLED TO AN END-OF-CONTRACT PAYMENT WHEN THEIR CONTRACTS EXPIRE
Judgment of the Court of Justice of the European Union dated 1 October 2015
A student signed a fixed-term employment contract to work during his university holidays (from 21 December 2010 to 24 December 2010). Pursuant to French labour legislation (Code du Travail), he was not paid the end-of-contract payment when his contract expired. The Code du Travail states that “the end-of-contract payment is not payable when a contract is entered into with a young person for a period that falls within his or her school or university holidays”.
The applicant considered that this provision was contrary to the principle of non-discrimination on the grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, and brought an action before the Conseil de Prud’hommes de Paris (Paris Labour Tribunal), which asked the Court of Justice of the European Union (“CJEU”) to issue a preliminary ruling.
The CJEU considered that students employed under a fixed-term employment contract during their school or university holidays are not in the same situation as students who work and study at the same time or other employees on fixed-term employment contracts who are eligible for the end-of-contract payment. The aim of this payment is to compensate employees for the precarious situation in which they are left when they lose their source of income. The contracts that students enter into to work during their holidays are temporary and ancillary because they intend to stop working and continue their studies at the end of the holiday period.
Consequently, the CJEU held that the different treatment on the grounds of age did not preclude national legislation.
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12. CLAUSE UNDER WHICH AN EMPLOYEE MUST GIVE HIS PERSONAL MOBILE NUMBER AND EMAIL ADDRESS TO EMPLOYER IS NULL
Supreme Court judgment dated 21 September 2015
A company appealed a judgment passed by the National Court regarding a collective dispute. The aim of the appeal was to analyse the validity of a clause the company had included in its employment contracts. The clause stated that “the parties expressly agree that any type of communication regarding this contract, the employment relationship or work post may be sent to the employee by SMS or email … using the details given by the employee to this end” and that “the company must immediately inform the employer of any change to these details”.
The Supreme Court considered that employees would have to expressly, freely and voluntarily consent to their personal details being included in their employment contracts for the clause to be valid. Even though the clause established that the employee gave his consent voluntarily this was not the case. The employer knew that the employee was the weaker party in the relationship and that he would agree to the clause for fear of not being employed, and therefore his consent was not freely and voluntarily given.
As a result, the Supreme Court held that the contractual clause was null as it breached the fundamental right to personal data protection regulated in article 18.4 of the Spanish Constitution.
13. COMPELLING EMPLOYEES TO REPORT PETROL THEFT IS A MANAGERIAL PREROGATIVE
Supreme Court judgment dated 17 September 2015
The Supreme Court (“SC”) heard an appeal lodged by a trade union against a judgment of the National Court regarding a collective dispute.
The SC had to decide whether or not a company policy stating that petrol station managers must report all cases in which a customer drives away from a petrol station without paying for fuel was lawful.
The SC firstly referred to the wording of the applicable collective bargaining agreement, according to which the duties referred to are only examples and not a complete list. Secondly, the SC considered that the employer’s managerial prerogative included the right to compel petrol station managers to report petrol theft.
The SC therefore confirmed that the duty to report cases of petrol theft was not contrary to the applicable collective bargaining agreement and therefore the petrol station managers had to comply with it.
14. A COMPANY ASKING ITS EMPLOYEES NOT TO STRIKE IS NOT CONTRARY TO THE RIGHT TO STRIKE, THE RIGHT TO TRADE UNION FREEDOM OR THE RIGHT TO PERSONAL DIGNITY
National Court judgment dated 15 June 2015
This case stems from a series of communications a company sent to its employees on 26 December 2012, 4 January 2013, 27 November 2014 and 3 February 2015. In the first communication employees were advised not to strike. In the second one the company not only repeated what it said in its previous communication, but also informed the employees about the consequences if they took part in what might be considered an illegal strike. The third communication criticised the trade unions’ call for strike action. The last communication referred to economic data and salary issues.
The trade unions believed that given the content of the company’s communications, the communications constituted a breach of the fundamental right to trade union freedom, the right to strike and the right to personal dignity.
The company firstly alleged that there was a lack of jurisdiction and that the limitation period for the action had expired and secondly that there was no breach of fundamental rights.
The National Court (“NC”) agreed that the limitation period for the communications dated 26 December 2012 and 4 January 2013 had expired. As a result, it considered that there had been no breach of the right to strike because the company had informed the employees about the economic impact of strike action in the two communications.
The NC analysed whether the other two communications could give rise to a breach of the right to trade union freedom and the right to personal dignity. In line with the case law of the Constitutional Court, the NC stated that although freedom of expression is not absolute, exercising such right shall not be limited when it is necessary, in other words, when it is essential, adequate and absolutely pertinent.
In the case at hand, the communications had to be considered in the context of a problematic relationship between the company and the employee representatives. As a result, the NC concluded that no fundamental rights had been infringed.
15. WHATSAPP IS A VALID MEANS OF COMMUNICATING RESIGNATION
Judgment of the High Court of Justice of Madrid dated 10 June 2015
On the date the claimant was scheduled to join her new workplace, she visited her previous workplace and informed the department head of her decision to no longer work for the company. That afternoon, they spoke again through the WhatsApp messaging service and the claimant reiterated her intention to not return to work. In the following days, the company sent the claimant a burofax explaining that it would prepare her severance package.
The High Court of Justice was tasked with addressing whether or not the claimant’s actions constituted a resignation or, as the claimant alleged, an unfair dismissal.
The High Court of Justice referred to settled doctrine of the Supreme Court stating that a “clear, specific, firm and decisive intention” to resign is required. Given that it was the claimant who indicated her intention not to return to the company both orally and via WhatsApp, the High Court of Justice held that there was no unfair dismissal and that the claimant had resigned.
16. DEATH OF A WORKER CAUSED BY HIS TRAINEE WHEN THE DECEASED WAS ABOUT TO DRIVE HIS CAR TO WORK IS AN IN ITINERE ACCIDENT
Judgment of the High Court of Justice of the Basque Country dated 2 June 2015
In this case, the High Court of Justice of the Basque Country (“HCJ”) analysed whether the death of a worker caused by his trainee when the worker was about to drive his car to work could be considered an in itinere accident (accident on the way to or from work). The trainee accidentally killed the worker when he attempted to steal his gold necklace.
The HCJ held that all legal requirements were met to classify the death as an in itinere accident:
- Teleological element: the worker was about to take his car to drive to work.
- Geographical element: at the time of his death, the worker had not diverted from his usual route to work.
- Chronological element: the accident occurred during the worker’s normal commute time.
- Suitability of transport mode: the worker usually drove to work with his car.
- Accidental nature of the attack: the worker’s death was accidental and was not down to personal problems between the attacker and the deceased. In fact, it would have been highly unlikely that the worker would have foreseen such an act.