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The information
contained in this Newsletter is of a general nature and does not constitute
legal advice |
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Unemployment.
Simplification of the steps to obtain the unemployment benefit
Royal
Decree 200/2006 of February 17, which amends Royal Decree 625/1985 of April
2l that develops Law 31/1984 of August 2 on unemployment benefits. Spanish
Official Gazette of March 3, 2006 The most
important developments introduced by this Royal Decree regarding unemployment
benefits are the following. A new
paragraph 6 has been added to Article 1 of Royal Decree 625/1985 of April 2
(hereinafter, “RD 625/1985”), which regulates the accreditation of an
individual’s status as unemployed. On the basis of the new paragraph, a
communication, written notification or a certificate/letter from the employer
is sufficient to evidence that an individual is unemployed. In these cases,
the cause and date of effect of unemployment must be stated in the company
certificate. Article 7
of RD 625/1985 has been amended so that groups of workers who alternate
between periods of employment and unemployment within a single month only
have to make one application for unemployment benefit for the full period or
each month. According
to the new wording of Article 10 of RD 625/1985, the entity that administers
the payment of the benefit must establish a specific procedure that allows
renewal applications and income tax declarations of those who receive
unemployment benefits and are over the age of 52 can be submitted by post or electronic
means. Furthermore,
paragraph 2 of Article 26 of RD 625/1985 has been modified so that the
beneficiaries will now receive the full amount of the benefit, including that
corresponding to the first 10 days of unemployment (which was previously withheld). Non-profit
entities that collaborate with the National Employment Service. Subsidies
Resolution
of January 26, 2006 of the National Employment Service, which establishes the
maximum subsidies for 2006 available to non-profit entities that run career
guidance and self-employment programs. Spanish Official Gazette of February
15, 2006 The Order
of January 20, 1998, as amended by the Order of February 4, 2000, regulates
the granting of subsidies to non-profit entities that run career guidance and
self-employment programs. Article 4.1 sets forth the amounts of the
subsidies. The Order of February 4, 2000 introduced a new paragraph c) to
article 4.1, that established that the amounts set forth in paragraphs a) and
b) of this article will be updated every calendar year, in accordance with
the retail price index. The
maximum amounts for which the National Employment Service will subsidise the
remuneration and Social Security payments to be paid by these entities for
the personnel needed to administer the programs according to the applicable
law and collective bargaining agreement for 2006 will be the following: For
technical staff, the amounts established for each category, level or
professional group, up to €29,321.50 per year. For
support staff, the amounts established for each category, level or
professional group, up to €20,525.05 per year. Dismissal.
Nullity. Discrimination on grounds of the employee’s sexual orientation
Judgment
of the Second Section of the Constitutional Court of February 13, 2006 This
decision resolves an appeal brought by an employee on the grounds of a breach
of his rights and liberties in response to the judgment of the Labour
Division of the High Court of Catalonia of June 27, 2003, which declared his
dismissal unfair by upholding the appeal against the first instance judgment
declaring the dismissal null and void on discrimination grounds. The
employee states that the appealed judgment breached his fundamental right to
not be discriminated against pursuant to Article 14 of the Spanish
Constitution. Thus, the criteria applied by the High Court were contrary to
those of the Constitutional Court as, according to the High Court, the
evidence filed by the company in an attempt to disprove the employee’s claims
was sufficient, even though such evidence did not actually disprove the
discriminatory situation alleged by the employee. The
company responded arguing that the employee should not have filed an appeal
to enforce constitutional rights (i.e. an appeal of the type filed by the
employee), but rather an appeal against the High Court’s decision seeking the
unification of case law. The company also challenged the appeal filed on the
grounds that the claims made were not sufficient to demonstrate its decision
to dismiss the employee was discriminatory. The
Constitutional Court did not accept the procedural objection raised by the
company, arguing that an objection of this type cannot be made in the
abstract and should be supported by legal arguments demonstrating that an
appeal for the unification of case law was possible and should have been
filed first. Secondly,
the Constitutional Court concludes that the employee submitted sufficient
evidence to prove that there was a link between the dismissal and the
employee’s sexual orientation, which the company had not been able to
disprove, as acknowledged in the first instance judgment, and also
indirectly, in the appealed judgment. Thus, the
company alleged contractual breaches that it could not prove, and failed to
show that the real reasons for the dismissal were not based on discrimination
and that the employee’s evidence was unrelated to the dismissal. Limitation
period. Writ submission. Application of the Spanish Civil Procedure Act
Judgment
of the Labour Section of the Supreme Court, October 31, 2005 In this
decision the Labour Section of the High Court of Andalucia
(Malaga) rejected an appeal submitted by the Municipal Agency of Fuengirola as the limitation period within which to issue
the appeal had prescribed. The writ
of appeal was submitted to the Labour Court the day following the end of the
limitation period. It was submitted before 15:00hrs that day. The
judgment finds that the Supreme Court’s case law considers Article 135.1 of
the Spanish Civil Procedure Act (hereinafter, “PCA”),
which allows a writ that is subject to a limitation period to be submitted
during the day following the end of the limitation period, before 15:00hrs,
is applicable in labour proceedings pursuant to the first Additional
Provision of the Spanish Labour Procedure Act and Article 4 of the PCA. For that reason, a writ submitted before “15:00 hrs
the next working day following the last day of the end of the limitation
period” is valid, including those filed in labour proceedings. Work Accident.
Surcharge. Administrative proceedings concerning benefits surcharges need not
be suspended owing to the initiation of criminal proceedings
Judgment
of the Labour Section of the Supreme Court of October 25, 2005 This
appeal before the Supreme Court, which was filed against a judgment of the
High Court of La Rioja, dealt with the question of
whether administrative proceedings concerning the imposition of a surcharge
on the benefits paid by a company as a result of a work accident need be
suspended if criminal proceedings are initiated in relation to the same
matter. A
judgment of the Labour Section of the High Court of La Rioja
of July 13, 2004, declared that the administrative proceedings had been
time-barred owing to the fact that the initiation of criminal proceedings
does not suspend ongoing proceedings concerning the imposition of surcharges. The
General Treasury of the Social Security and the National Social Security
Institute claimed that Article 16.2 of the Ministerial Order of January 18,
1996 and Article 3.2 of Royal Decree 5/2000 of August 4 had been breached. Article
16.2 of the Ministerial Order states that where the authorities become aware
of the existence of criminal proceedings concerning an employer’s liability
for the failure to adopt the necessary safety measures, the corresponding
administrative proceedings should be suspended, but only in relation to this
aspect. The Order applies and develops Royal Decree 1300/1995 on Social
Security aspects of incapacity. However
the Supreme Court considers that Royal Decree 1300/1995 does not set forth
any rule that allows the suspension of the administrative proceedings
concerning surcharges to be paid by employers on incapacity benefits. Nor does
the Court consider that Article 3.2 of Royal Decree 5/2000 provides grounds
for suspension since it solely refers to sanction proceedings, and
administrative proceedings on surcharges have a sui
generis nature that is different to that of a
sanction strictu sensu. Thus, the
judgment concludes that there is no reason to suspend the administrative
proceedings concerning a surcharge owing to the initiation of criminal
proceedings. Dismissal.
Employee’s Privacy. Limit to the employer’s power to search the employee’s
computer
Judgment
of Labour Court no. 1 of Santander, December 1,
2005 The
claimant was dismissed for, among other reasons, committing acts of unfair
competition. The court had to determine whether the company’s inspection of
the employee’s computer, which was carried out without the employee in question
or any other employee being present, to establish whether the employee
committed acts of unfair competition, was a breach of Article 18 of the
Statute of Workers (hereinafter, “SW”), and consequently, whether the
evidence obtained to prove the grounds for the dismissal is null and void. To this
end, the employer’s powers established in Article 20.3 SW must be considered.
In this regard, the court concluded that the surveillance and control powers
of employers must be used proportionally, without causing any unjustified
limitation of the fundamental rights and public freedoms of the employees. As
such, the court acknowledged that the worker’s personal computer falls within
the concept of “locker” as this is defined in Article 18 of the SW. In this
regard, an inspection of a “locker” can only be carried out when it is
necessary to protect the company or other employees, and must be conducted in
the workplace during working hours. The dignity and privacy of an employee
must be respected, and his/her legal representative must attend, or failing
him/her, another employee of the company, wherever possible. Consequently,
due to the fact that these requirements were not complied with when obtaining
the information from the employee’s computer, such information could not be
used.
The information contained in
this Newsletter is of a general nature and does not constitute legal advice |
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