Employment - Legislative and case law developments

July 2022

1. The termination of the employment relationship of a transsexual person during a probation period is not discriminatory when the cause is unrelated to the breach of a fundamental right

The Constitutional Court held that the termination was fair, as no culture of gender or sex discrimination had been evidenced within the company.

2. The statutory limitation period for bringing an action for unfair dismissal restarts after the conciliation meeting, or 15 working days after filing for settlement

The Supreme Court consolidated its case law with this decision and held that the statutory limitation period is suspended when a party files for settlement. The period restarts after the conciliation meeting, or 15 working days after filing for settlement.

3. Determining the percentage of absenteeism for temporary incapacity allowance must take into account days of absence in relation to working days

The Supreme Court concluded that when calculating the percentage of absenteeism in the company, absent days must be taken into account relative to the number of days worked (including Saturdays, Sundays and mid-week public holidays), excluding annual leave.

4. Transport allowance is extra pay and not payable to remote workers who do not commute

The Supreme Court held that the transport allowance in the Collective Bargaining Agreement for the Contact Centre Sector for night workers is not considered salary and therefore should not be paid to remote workers who do not have to travel to the workplace even though they work at night.

5. Verbal and physical offences against co-workers outside the workplace and working time are grounds for dismissal when the action affects the company

The Supreme Court ruled that the disciplinary dismissal of an employee who assaulted and insulted his co-workers during a Christmas lunch was fair, because although the offences took place outside the workplace and not during working hours, they were related to his work and were detrimental to the company.

6. The employee's right to remuneration cannot be affected by the decision not to carry out a temporary lay-off during a period of no services due to force majeure

The Supreme Court ruled that employees have a right to receive their full remuneration when the employer decides not to instigate a temporary lay-off plan during a period of no effective provision of services, despite the fact it is a force majeure event.

7. Temporary contract for production reasons is incompatible with public sector’s structural needs except for specific situations

The Supreme Court consolidated case law establishing that the use of temporary contracts due to unforeseeable production circumstances is allowed on an exceptional basis within the scope of the public sector and for specific staff shortages, when the grounds for using temporary contracts arise. It is not allowed when the absenteeism is due to legally permitted ordinary causes (e.g. temporary incapacity, annual leave) or other seasonal circumstances that the employer could foresee.

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