Employment - Legislative and case law developments

June 2022

1. Temporary workers who have been assigned to a company have the right to the same basic working and employment conditions as if the contracting company had recruited them

The Court of Justice of the European Union has held that national legislation that, when the employment relationship is terminated, provides for lower remuneration for untaken holidays and a lower holiday bonus pay for temporary agency workers than what they would have been entitled to had they been employed in the same job position by the contracting company, is contrary to EU law.

2. Under EU law, a company employee who is also a board member does not lose their status as an employee      

The Court of Justice of the European Union has ruled on a case regarding national case law according to which a person who, under an employment contract that is valid under national law, performs the functions of both director and member of the governing body of the company cannot be classified as an employee within the meaning of Directive 2008/94 of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer and therefore cannot benefit from the guarantees provided for in that regulation. It held that it was contrary to Directive 2008/94.

3. Spanish courts have jurisdiction over the dismissal of an employee hired by companies from the same business group

The Supreme Court has held that the Spanish courts have jurisdiction to rule on the dismissal of an employee who was hired by both a US and a Spanish company from the same business group.

4. A collective dismissal during the pandemic when the prohibition to dismiss was in force is valid

A company that loses its main customer and for this reason is faced with a structural issue should preferably resort to a definitive measure such as a collective redundancy rather than a temporary one such as a temporary lay-off plan, which is envisaged for circumstances where the company’s situation is temporary or merely cyclical.

5. Supreme Court recognises the Association of Employment and Temporary Employment Agencies’ standing to challenge a collective bargaining agreement

An association that includes several temporary employment agencies is entitled to challenge a collective bargaining agreement when it can prove that the agreement in question has seriously harmed the interests of the association and of its members.

6. An employee who engages in unfair competition can be dismissed for disciplinary reasons even if someone else is the direct beneficiary of their conduct

The Supreme Court has upheld the dismissal of an employee who engaged in unfair competition against their company, even though someone else was the direct beneficiary of their unlawful activity – in this case their immediate superior.

7. Video-surveillance evidence used to dismiss an employee valid when the employee representatives have been informed that employees are recorded at work even if the employees themselves have not

Relying on video-surveillance evidence to dismiss an employee for disciplinary reasons is valid when there are signs informing of the existence of the cameras and the employee representatives are notified when they are moved, even if each worker has not been informed individually.

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