September 2006

NEWSLETTER


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



LABOUR LAW

 


Labour proceedings. Suspension of trial for failing to appear before court

The judgment of the Labour Chamber of the Spanish Supreme Court, dated 25 April 2006, stated that parties to proceedings have no discretion to decide whether to attend trial or not. Failing to appear before court can only be justified in certain circumstances, such as serious illness, which in any event must be evidenced. The principle of good faith is essential in this regard. (More information)

Mobbing. Court holds harasser and employer company joint and severally liable to compensate an employee for damages caused by pain and suffering

The Labour Chamber of the High Court of Justice of Catalonia, dated 25 July 2006, declared the company and the manager who harassed the employee joint and severally liable to pay €31,500 as compensation for pain and suffering. (More information)

Mobbing. Infringement of the right to personal dignity. Court allowed claimant to seek compensation for termination of a contract and pain and suffering in the same proceedings

The judgment of the Labour Chamber of the Spanish Supreme Court, dated 17 May 2006, allowed a claimant to seek compensation in the same proceedings, for the termination of a contract and for a breach of a fundamental right. The claimant was seeking compensation for damages and pain and suffering as a consequence of mobbing caused by a manager. (More information)

Maternity. Right of an unemployed woman to be a jobseeker, without having to state it expressly, and to opt for the employment offers of the Spanish Public Employment Service during her maternity leave

In judgment 214/2006 of the Spanish Constitutional Court, dated 3 July 2006, it was held that the claimant was entitled to continue being considered a jobseeker by the Spanish Public Employment Service in order to find work despite being on maternity leave and thus, she did not have to fulfil those obligations of a jobseeker that were incompatible with her maternity leave. (More information)

Collective dispute. Involvement of trade union members in meetings held during the working day

The judgment of the Labour Chamber of the Spanish Supreme Court, dated 16 February 2006, stated that the criterion enabling trade unions to be present at the Works Council is valid to grant its members the right to participate in the meetings held during the working day. (More information)


Labour proceedings. Suspension of trial for failing to appear before Court

Judgment of the Labour Chamber of the Spanish Supreme Court, dated 25 April 2006

In this case, although the claimant attended the oral hearing before the Labour Court, the defendant failed to appear before court alleging that this was due to a sudden medical emergency of which the court not be notified in advance. The Labour Court held that the company was guilty. The decision was brought before the High Court of Justice of Madrid,  which stated that the company had been clearly deprived of the right to defence.

However, the Spanish Supreme Court (“SC”) held, in accordance with the doctrine applied by the Spanish Constitutional Court (“CC”), that there is no discretion as to the reasons for failing to appear before court and that the stay of proceedings must be based on specific appropriate and duly evidenced circumstances such as serious illness.

The SC reiterated the obligation to notify the judge of the reasons for failing to appear before court prior to the commencement of the trial, unless this is impossible due to the particular circumstances.

In this case, the SC stated that there is a conflict of rights: the right to effective judicial protection without being deprived of the right to defence and the right for proceedings to be concluded without undue delay.

The SC stated that being admitted to hospital for an emergency in a major city, shortly before trial, constitutes an unforeseeable event of which the judge cannot be notified in such short notice. However, this was not the situation in the case at hand, since the defendant totally lacked diligence. In fact, she went to the dentist because of a toothache, which does not constitute a sufficiently serious or sudden illness that justifies failing to appear before court without notifying the judge in advance.

Mobbing. Court holds harasser and employer company joint and severally liable to compensate an employee for damages caused by pain and suffering

Judgment of the Labour Chamber of the High Court of Justice of Catalonia, dated 25 July 2006

This judgment analysed whether an employee of a company was actually harassed by a manager, thus infringing the employee’s right to dignity and creating a hostile, intimidating, degrading, humiliating and offensive atmosphere.

The High Court of Justice of Catalonia (“HCJC”) examined European and national laws on mobbing before analysing the facts of the case.

The HCJC held that the claimant was suffering mobbing and that the company, by initially tolerating such behaviour and subsequently relocating the employee, was to a certain extent sustaining an element of hostility towards the employee. Consequently, the company was held liable based on a breach of legal and constitutional provisions.

The claimant evidenced (by providing witness statements, a labour inspection and medical reports, amongst others) that the situation was such, that the continuity of the contract was impossible. Consequently, the court held that the company was also liable, since it was aware of the situation and failed to take action. Therefore, the manager and the company were held joint and severally liable to pay compensation for pain and suffering.

Mobbing. Infringement of the right to personal dignity. Court allowed claimant to seek compensation for termination of a contract and pain and suffering in the same proceedings

Judgment of the Labour Chamber of the Spanish Supreme Court, dated 17 May 2006

This judgment analysed whether a claimant could seek compensation for the termination of a contract and for the breach of a fundamental right in the same proceedings. In the latter, compensation was sought for damages and pain and suffering for mobbing caused by a manager.

The claimant sought a severance compensation in accordance with Article 50.1 a) of the Statute of Workers (“SW”) and an indemnification of €60,101 as damages for the breach of the fundamental right to personal dignity as a consequence of the mobbing suffered.

The SC highlighted that the claimant had clearly alleged from the outset that a breach of said fundamental right had been committed -the termination of the contract was based on this breach-, and that it was the cause of the depression suffered by the claimant. Since this condition was caused by work-related stress, the indemnification for moral damages and the severance payment were claimed in the same proceedings.

The SC stated that Article 182 of the Labour Procedure Law (“LPL”) does not limit the indemnification for termination of contract in accordance with Article 50 of the SW to a severance payment, since although the proceedings for the termination of the contract are to be followed, the two different issues may be indemnified separately.

Therefore, in accordance with the decisions of the SC dated 3 April 1997 and 11 March 2004 and pursuant to Articles 180, 181 and 182 of the LPL, both indemnifications may be requested in the same proceedings, since the breach of the fundamental right to dignity is alleged in the claim for termination of the contract.

This judgment constitutes a significant change in the approach of  the SC in this area.

Maternity. Right of an unemployed woman to be a jobseeker, without having to state it expressly, and to opt for the employment offers of the Spanish Public Employment Service during her maternity leave

Judgment 214/2006 of the Spanish Constitutional Court, dated 3 July 2006

The CC analysed whether the Spanish Public Employment Service (“SPES”) was obliged to consider the claimant, who was enjoying maternity leave whilst unemployed, a jobseeker including all the benefits and obligations that membership in such public body implies.

The SPES claimed that, since maternity leave was compulsory (for at least 6 weeks after childbirth) the relationship between it and the jobseeker should be suspended. It argued that failure to do so, could lead to discrimination against another jobseeker. The SPES maintained that by suspending the relationship, the jobseeker enjoying maternity would benefit, since she would not have to comply with the obligations of the SPES during the relevant period.

With regard to the term during which maternity leave is not compulsory, the SPES considered that the claimant would have to decide whether to continue with the suspension or register again with the SPES as a jobseeker, something which the claimant failed to do.

The CC held that the SPES breached the claimant’s right not to be discriminated on the grounds of sex.

Article 14 of the Spanish Constitution sets forth the right to non-discrimination on the grounds of sex and in this regard the CC stated that the aim of the public authorities should be to do away with any obstacles that hinder equality and anything that is in any way derogatory on the grounds of  sex. Since, in the case at hand, the claimant was discriminated for having a child, which is closely linked to the fact that she is woman, the CC held that discrimination on the grounds of sex had taken place. Although the SPES justified the measure taken, the CC stated that the discriminatory consequences prevailed and that discrimination could not be justified by any means.

The CC stated that besides discrimination on the grounds of sex, all discrimination direct and unequivocally connected with the gender of a person (such as pregnancy) is prohibited.

In the case at hand the claimant undoubtedly suffered damages as a consequence of the SPES not considering her for the offers available, which allegedly was due to the claimant’s maternity. However, this negative effect of the suspension is not foreseen in Article 48.4 of the SW that governs this issue, since such effect would be contrary to the purposes of the regulation.

The CC clarified that the only purpose of the SPES is to find suitable jobseekers for the employment offers, in accordance with the profile requested by the potential employer, who in turn shall decide whether or not to take the applicant on. Therefore, a woman on maternity leave may also apply for a job, since she will be able to occupy the relevant post once the corresponding period of leave has concluded.

The CC finally stated that the claimant did not have to reiterate her wish to be considered for employment, since she had already done so when filling in the original application form with the SPES.

Collective dispute. Involvement of trade union members in meetings held during the working day

Judgment of the Labour Chamber of the Spanish Supreme Court, dated 16 February 2006

In this case, the article of the company’s Collective Bargaining Agreement that regulates the involvement of the members of trade unions in meetings held during the working day was amended. This amendment was carried out following a collective bargaining process between the trade unions and the company. As a result, “trade unions with representation in the Works Council can hold meetings for their members during the working day (...) with a maximum duration of 30 minutes per meeting, in addition to the meetings summoned by the Works Council.

A minority trade union of the company filed a claim requesting the nullity of the new draft of the article.

In the past, the SC has deemed former drafts of the article in question void, since they were discriminatory against workers on the grounds of their union affiliation. While the first version was rejected because only the employees who were affiliated to the union with the highest representation could attend the meetings held during the working day, the second draft  was rejected because this right applied only to employees affiliated to a trade union with representation in a Works Council.

Nevertheless, the SC held that the latest draft of the article was not void, because the disparate treatment of trade unions in accordance with their representation is legitimate to avoid the excessive fragmentation of the representation of trade unions and because it is lawful in accordance with Union Freedom Law (“UFL”), notwithstanding any other requirements, for instance, the principle of proportionality.

The SC held that the new draft was not disproportionate as no general right of the UFL was infringed and since some trade unions obtained even more rights, in particular, those with representation in the Works Council. This development is reasonable since the purpose of the clause subject to challenge is not to create inferior conditions for the trade unions with no representation in the Works Council.

The SC took into account that the company has Works Councils in the 52 provinces in Spain as well as in Ceuta and Melilla, thus the activity of the trade unions with no representation in any of the Works Councils would be minimal.

The SC concluded that to distinguish between trade unions in accordance with the representation in the Works Councils and to provide the relevant resources to the unions with the highest representation to better carry out their tasks is totally legitimate, since the UFL, amongst others, sets forth that representation in Works Councils is an objective criterion rather than a discriminative one.


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