August 2006

NEWSLETTER


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



LABOUR LAW

 


Prevention of occupational hazards. Personal protective equipment

Communication 2006/C 180/02 of the Commission sets forth a detailed list of the regulations governing individual protective equipment in accordance with Directive 89/686/EEC, dated 21 December 1989, on the harmonization of Member State laws on personal protective equipment. (More information)

Holidays. Prior temporary sick-leave has no effect over the right to enjoy holidays

The judgment of the Labour Chamber of the Spanish Supreme Court, dated 10 November 2005, established that temporary disability suffered before the pre-arranged holiday period and thus preventing an employee from taking her holiday leave during the said period, cannot prevent her from taking her holiday leave at a later stage. (More information)

Trade Union freedom. Breach. Dismissal of employee representative. Disproportionate measure

In judgment 227/2006 of the Spanish Constitutional Court, dated 17 July 2006, it was held that the right to trade union freedom was breached in a employee representative’s dismissal who held a meeting with clients, unbeknownst to the company, in which he made public some information relating to the internal running of the company. (More information)

Trade union freedom and right to due process. Breach. Decision not to grant damages to an employee representative was ungrounded

Judgment 247/2006 of the Spanish Constitutional Court, dated 24 July 2006, provides that the right to due process of an employee representative had been breached because the decision under appeal had not been reasoned, causing a breach of the right to trade union freedom. (More information)


Prevention of occupational hazards. Personal protective equipment

Communication of the Commission within the general framework of the application of Council Directive 89/686/EEC, dated 21 December 1989, on the harmonization of Member State laws on personal protective equipment. Official Journal of the European Union of 2 August 2006

This Communication sets forth a detailed list of the regulations governing individual protective equipment harmonised in accordance with Directive 89/686/EEC.

This list includes the following information: (i) the reference details and title of the rule; (ii) date of first publication in the Official Journal of the European Union; (iii) the reference details of the substituted and withdrawn rule; and (iv) the deadline for obtaining approval in relation to the substituted rule.

With regard to the deadline for obtaining the approval, it is important to highlight that this date will coincide with the withdrawal date set forth by the European Standardisation Body, although exceptionally this date may vary.

Holidays. Prior temporary sick-leave has no effect over the right to enjoy holidays

Judgment of the Labour Chamber of the Spanish Supreme Court, dated 10 November 2005

In this case, the claimant took her maternity leave on 23 July 2003, whilst the holiday period was established for the month of August. Once she had benefited from the maternity leave, which concluded after the month of August, the company refused to grant her holiday leave during a period not within the month established for holidays.

The Spanish Supreme Court (“SC”) stated that any temporary disability suffered before the established holiday period that prevents an employee from enjoying his/her holidays during such period, has no effect on the right to enjoy the annual holidays to which every employee is entitled for rendering services in the company.

In addition, the SC stated that temporary disability, which arises during the enjoyment of the holiday period must be dealt with differently, since this constitutes a risk that must be assumed by the employee, whereas temporary disability arises before the holiday period and affects its enjoyment on a pre-established date.

In this regard, the SC based its decision on the reasoning that suffering from temporary disability, as a result of common sickness or maternity, within the pre-established period for holiday is a completely different legal interest than the granting of annual holidays. Additionally, to deny the compatibility of the annual holiday with the enjoyment of maternity leave would be clearly discriminatory for women.

Finally, this judgment refers to a judgment of the Court of Justice of the European Communities dated 18 March 2004, which was decided in the same sense, stating that the fact that an employee’s maternity leave coincides with the yearly holiday month for all the staff cannot prevent this employee from enjoying her holiday entitlement at a later stage.

Trade Union freedom. Breach. Dismissal of employee representative. Disproportionate measure

Judgment 227/2006 of the Spanish Constitutional Court, dated 17 July 2006

This judgment analysed whether the right to trade union freedom of a teacher had been breached. The teacher was the president of the Works Council and was dismissed on disciplinary grounds for breach of contractual good faith, professional confidentiality and for verbal offences against a school director. The actions occurred in a meeting with the parents of the pupils in a bar close to the school, without the permission or knowledge of the school. The employee led the meeting and made public some information relating to the internal running of the school (disputes between teachers and the director and debts of the school with the Social Security, among other issues).

The judgment issued by the Court of Appeal declared that it was a fair dismissal taking into account that the employee exercised his fundamental right exceeding contractual good faith limits: he disclosed information of which he had knowledge because of his position, for private purposes and used the meeting and the information for his own benefit as a means to put pressure on the company.

After studying these facts, the Spanish Constitutional Court (“CC”) focused its analysis on the limits imposed on the exercise of the rights of freedom of expression and trade union information - both of which are included in the right to trade union freedom - by the existence of a legal and labour link, and finally, if the disciplinary dismissal was a necessary, adequate and proportionate measure to achieve the employer’s legitimate interests.

In this regard, the CC based its judgment on the following considerations:

(i)             the attendance of the appellant to the meeting and the lack of communication to the company are protected by Article 21.1 of the Spanish Constitution. Article 21.1 provides that the right to a peaceful meeting does not require any prior authorization;

(ii)            the disclosure of information made in the meeting with the parents did not contravene the professional confidentiality because it is not unlimited and only affects those matters set out in Article 65.2 of the Statute of Workers (“SW”);

(iii)          regarding the disclosure of the internal labour conflicts, supposedly limited by a general duty of loyalty to the company, the CC understands that said duty does not exist with a meaning of “total subjection of the employee to the employer’s interest” because this would not be in accordance with the constitutional system of labour relationships;

(iv)         the CC stated that the exercise of the rights to freedom of expression and trade union information may not be limited by excluding the internal labour conflicts as one of the main characteristics of labour conflicts is publicity or external projection in order to expose one’s opinion or to gather support.

On the basis of the above, the CC concluded that the disciplinary dismissal of the appellant was a disproportionate measure and that, therefore, the fundamental right to trade union freedom in the context of freedom of expression and trade union information had been breached.

Trade union freedom and right to due process. Breach. Decision not to grant damages to an employee representative was ungrounded

Judgment 247/2006 of the Spanish Constitutional Court, dated 24 July 2006

This judgment analysed whether the fundamental rights of an employee representative had been breached after the Supreme Court had denied the compensation that the Labour Court had granted for moral damages arising from the breach of his right to trade union freedom.

The CC analysed if the reasoning of the judgment under appeal which denied the compensation granted by the Labour Court, satisfied the reasoning requirements with regard to judicial resolutions, from the point of view of a right to the due process.

In this regard, Article 24 of the Spanish Constitution states that judicial bodies have a duty, not only to offer a reasoned answer to the claims, the answer must include legal reasoning and must not be biased. Moreover, as it was a resolution issued in the context of proceedings for the protection of trade union freedom, there was a stronger duty to provide a reasoned response.

The CC stated that the appellant exposed in detail in its lawsuit the anti-union behaviour he suffered when he took part in union activities. The CC held that this anti-union behaviour caused him quantifiable economic damages (reduction of working hours with the corresponding reduction of salary) and moral damages which are not as easily quantifiable. Likewise, the CC held that the appellant provided necessary basis and evidence in the proceedings to prove and determine the damages in order to assess the compensation that he was claiming.

In the appeal judgment, the SC only dealt with (i) the fact that the case law that the appellant brought forward did not apply and (ii) with the need to provide to the proceedings the facts that would help calculate the amount of damages. The indemnity granted by the Labour Court was rejected without taking into account the aforementioned issues alleged and proven by the appellant that had also been taken into account in the judgment of the Labour Court and confirmed by the Court of Appeal.

The CC held that the right to due process of the appellant had been breached, causing at the same time the infringement of the own substantive fundamental right in which repair was recognized the revoked indemnity, that is, the right to trade union freedom since “the lack of a reasoned resolution concerning a fundamental right is equivalent to a breach of such right”.


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