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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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Equal opportunities and treatment between men and womenDirective 2006/54/EC of the European Parliament and Council dated 5 July 2006, regarding the application of the principle of equal opportunities and treatment between men and women for employment and occupational matters (adaptation). Official Gazette of the European Communities of 26 July 2006 The significant amendments of Directives 76/207/EEC and 86/378/EEC, relating to the equality of treatment between men and women for Social Security purposes and the remuneration of male and female employees, in addition to the modifications of Directives 75/117/EEC and 97/80/EC, relating to the application of the principle of equal treatment between men and women, has resulted in their re-drafting in Directive 2006/54/EC. The aim of such re-drafting is to clarify the fragmented regulation of such subject and introduce certain new issues arising from the case law of the European Court of Justice (hereinafter, the “ECJ”). From such new issues, what stands out most is the idea that the principle of equal treatment does not prevent Member States from maintaining or adopting measures that establish specific advantages to facilitate the minority sex from carrying out their professional activities or to avoid or to compensate the disadvantages that they suffer in their professional careers. In addition, as from 15 August 2009, Directive 2006/54/EC revokes Directives 75/117/ EEC, 76/207/EEC, 86/378/EEC and 97/80/EC. Dismissal of disable employeesJudgment of the European Court of Justice, dated 11 July 2006 This Judgment settles the prejudicial question raised by Labour Court no. 33 of Madrid. The question raised to the ECJ was whether Directive 2000/78/EC, as it establishes a general framework to fight against discrimination for disability reasons, includes within its scope of protection the dismissal of an employee due to his/her illness. Directive 2000/78/EC does not define disability. The ECJ establishes that, for the purposes of Directive 2000/78/EC, disability must be understood as any limitation arising from physical, mental or psychic illnesses, which constitutes an obstacle to participating in professional working life and that, furthermore, has a long duration, as opposed to being purely and simply comparable to an illness. In this regard, the ECJ states that, although Directive 2000/78/EC forbids dismissals due to the discrimination of a disability (opposing a dismissal for disability reasons that do not justify the incompetence or the unavailability of the employee to carry out the functions of his job), such protection does not cover the dismissal of an employee for illness reasons only. Appeal for judicial review. It cannot be based on prior judgments of the European Court of Human RightsJudgment number 197/2006 of the First Division of the Constitutional Court, dated 3 July 2006 The First Division of the Spanish Constitutional Court, in its Judgment of 3 July 2006, rejects the appeal issued by an employee against the Judgment of the Spanish Supreme Court which did not consider that the subsequent relating Judgments of the European Court of Human Rights should be a reason to appeal the Judgment. The Judgment of the European Court of Human Rights (hereinafter, “ECHR”) of 29 February 2000, declared that a dismissal, based on the opinions of an employee about the company given during a radio programme, had infringed his right to freedom of expression, since there was no proportionality between the dismissal sanction and the purpose. The employee claimed compensation for the damages caused by the infringement of his fundamental rights. Such compensation was granted by the ECHR, although an amount less than that claimed was finally awarded. Following the Judgment of the ECHR, the employee requested that the Labour Court that had allowed his dismissal, execute the judgment of the ECHR, as regards his reinstatement in the company and the payment of the salaries accrued from the moment of the dismissal (back-pay award). The Labour Court rejected such request as the employee had not put forward such issues before the ECHR, therefore the employee could not request their execution. As a result, the employee applied for judicial review before the Spanish Supreme Court, which was rejected since the Judgments of the ECHR are not valid for judicial review purposes according to Article 510 of Law 1/2000 of 7 January of the Civil Procedure Rules (hereinafter, “CPR”) (other countries such as Norway or Malta have included a specific legal provision in this regard). Finally, the employee issued an appeal for the breach of the court’s effective protection in relation to freedom of expression. The Spanish Constitutional Court, in addition to stating that the persistence of the infringement of the fundamental right resulting in the dismissal cannot be alleged, it concludes that the right to the effective protection of the court has not been infringed as Article 510 of CPR does not include such reason upon which an appeal can be based. However, the Judgment states that in the event of a null and void dismissal, the dismissal will continue to exist until its effects cease to exist. Holiday. Remuneration: salary items includedJudgment of Courtroom number 4 of the Spanish Supreme Court, dated 14 March 2006 The employee requested the inclusion of a concrete salary item in his holiday pay (the so-called “toma y deje” payment) . The general rule regarding the amounts to be received as holiday pay is that all salary items that the employee receives on an ordinary working day basis must be included. Only those items corresponding to tasks carried outside of an ordinary working day may be excluded. Notwithstanding the above, the Supreme Court holds that collective bargaining agreements can fix the terms of the holiday pay, provided that they respect the minimum standards. In this regard, the collective bargaining agreement applicable to the company specifically establishes the items to be included in the holiday pay. The “toma y deje” item, which the employee requested to be included and that remunerates occasional overtime, is not expressly included. The Court finds that besides the fact that the “toma y deje” item is not expressly included in the applicable collective bargaining agreement, the said item should not be included in the holiday pay as it is not awarded for normal working hours, but instead for occasional working time. Stock options. Calculation of severance payJudgment of the High Court of Justice of Catalonia, dated 15 March 2006 The claimant was a beneficiary of a stock option plan granted by the company she worked for. The claimant exercised such option on March 10, 2004 and received the financial profit on April 6, 2004. On April 6, 2005 the claimant received a dismissal letter, which acknowledged its unfairness and therefore offered the statutory severance payment. The Judgment of the Labour Court acknowledged the unfairness of the dismissal and the claimant’s right to consolidate the amount deposited before the Court. Notwithstanding this, the employee lodged an appeal claiming the Court’s failure to include the amount that she had received from exercising the stock option in the salary calculation of the items received within the year prior to the dismissal, and which is used to calculate the severance payment. The High Court of Justice of Catalonia rejected the appeal stating that the date to be considered for the purpose of determining if the amounts received are remuneration in cash (which must be considered for the calculation of the severance payment) is the date on which the options are exercised (10 March 2004), which is separate from the date on which the profit was received (6 April 2004), given that the employee’s right was consolidated on the date that she exercised the option. Thus, since 10 March 2004 is not within the year prior to the dismissal, the benefits obtained from the stock options cannot be considered to calculate severance payment. Fair dismissal. Holiday leave taken without authorizationJudgment of the High Court of Justice of Navarra, dated 3 March 2006 The employer delivered a letter to the employee clarifying the company’s work calendar, which established 30 calendar days’ holiday leave. The claimant replied to the letter, stating that the breakdown of the company’s work calendar established an extra 20 working days in comparison with that established in the applicable collective bargaining agreement. As a consequence thereof, he requested the company to clarify specific days as holidays. Despite the fact that the company rejected such request, the employee considered the extra 20 working days as holiday and consequently did not attend his job for such time period. The Judgment includes the protection of holiday leave in accordance with Spanish law, international law and case law, defining the right to holiday leave as a complex right that involves both the periodical interruption of work as well as the maintaining of the salary payment. Notwithstanding this protection, article 38.2 of the Statute of Workers (hereinafter “SW”) establishes that the holiday leave period shall be set by the collective bargaining agreement or by the mutual agreement of the employer and employee, without the employee being able to unilaterally establish his holiday period. As a consequence thereof, the Court finds the dismissal of the employee to be fair in accordance with article 54.1.a) of the SW, which provides that repeated and unjustified failures to attend work are adequate grounds for a disciplinary dismissal.
The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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