Employment - Legislative and case law developments

1. Government bans dismissals based on the increase in energy prices

The ban on companies justifying dismissals based on soaring energy prices will be in place until 30 June 2022, as part of a series of measures to mitigate the economic consequences of the war in Ukraine.

2. Special employment relationship and social security contribution scheme for artistic activities are amended

Royal Decree-Law 5/2022 of 22 March updates Royal Decree 1435/1985 of 1 August, which regulates the special employment relationship of those working in the performing, audiovisual and musical arts, with the objective of improving the working conditions of Spanish creatives.

3. RED Employment Flexibility and Stabilisation Mechanism is established

Royal Decree-Law 4/2022 of 15 March introduces the RED Mechanism in order to extend the temporary lay-offs and reductions of working hours (ERTEs) that expire on 31 March 2022.

4. Directive amending the rules on the temporary posting of road transport workers is transposed

Royal Decree-Law 3/2022 of 1 March transposes into Spanish law Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector.

5. Collective dismissal in response to employee representatives objecting to a temporary lay-off taking place due to COVID-19 is null as it breaches the protection against retaliation by the employer

A company may carry out a collective dismissal for COVID-19-related economic, technical, organisational or production reasons as long as the circumstances are definitive and permanent. In this case the company carried out a collective dismissal after employee representatives objected to a temporary lay-off taking place due to COVID-19, thus breaching the employees’ right not to be retaliated against for exercising their rights.

6. Dismissal in response to an employee’s marriage announcement is null

The dismissal of a female worker in response to her decision to get married and make use of her leave entitlement is null as it constitutes discriminatory treatment on the grounds of her marital status, which is prohibited by article 14 of the Spanish Constitution.

7. Permanent employees of remunicipalised services retain that status in the public entity

In light of the case law of the Court of Justice of the European Union, the Supreme Court has recognised the right of permanent employees subrogated to a public authority to retain their status as permanent employees of the now publically provided service, although with certain conditions.

8. The prohibition on having multiple collective bargaining agreements with the same scope applies to the initial term as well as to any further extension agreed by the parties

The Supreme Court has confirmed that while a collective bargaining agreement for a specific sector is in force, no other collective bargaining agreement with the same scope may be applicable to the employees whose employment relationships are governed by the former. This prohibition not only applies during the initial term, but also during any agreed extension of the pre-existing agreement, provided there has not been prior notice of termination.

9. In the absence of a collective bargaining agreement specifically suited to the company’s activity, the parties may agree on which one to apply

Where there is no obligatory collective bargaining agreement to apply to the employment relationship because that relationship does not fall within the scope of application of any particular collective bargaining agreement, the parties may agree to apply one of a different location.