Employment - Legislative and case law developments

August 2022

1. A collective agreement provision giving a higher wage supplement for irregular night work than for regular night work is compatible with EU law

A provision of a collective agreement granting a higher remuneration for irregular night work than that established for regular night work was not passed to implement Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time, and therefore the subsidiarity principle set out in Article 51.1 of the Charter of Fundamental Rights of the European Union did not apply and Member States did not have specific obligations in this regard.

2. Using security camera recordings to ascertain whether an employee had committed a punishable offence in the past does not violate their data protection rights

An employer reviewing security camera footage after receiving a customer complaint to check if a worker had acted dishonestly on previous occasions was not a “fishing expedition” and, as a consequence, its decision to dismiss the worker on the basis of the information it collected this way was fair.

3. Irregular salary reductions may be challenged while the employment contract is in force

Failing to carry out a salary reduction in accordance with the rules for substantial modifications of working conditions (modificación sustancial de las condiciones de trabajo) is a unilateral action of the employer and may be challenged for as long as the contract is in force, even if the limitation period to claim the unpaid amounts has expired as the right to receive salary is a continuous right.

4. Companies must provide an email account to all employees working from home and ensure they can contact their worker representatives

As an employer must ensure that its employees have the necessary means to carry out their contractual duties, this includes providing them with an email account. Specifically, the employer must ensure the employees can communicate with their worker representatives and cannot force them to use personal email accounts for this purpose. The employer must provide the worker representatives with a list of the employees’ work email addresses.

5. Dismissing an employee for exceeding break times after a warning is fair

An employer using quality control systems to verify that an employee working from home was exceeding permitted break periods is legal, as it only led the company to warn the employee that he must abide by the mandatory break periods. The employee ignored the repeated requests from the employer to comply and was dismissed as a result. The fact that the quality control systems were used did not render the dismissal unfair.

6. A change of 13 minutes in start and finish times may be considered a substantial modification of working conditions if it affects the right to work-life balance

To determine whether it constitutes a substantial modification of working conditions, an alteration in working hours should take into account the employee’s gender and societal changes.

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Juan Reyes

Partner since 2011 Barcelona

Ana Alós

Partner since 2016 Barcelona

Raúl Boo

Partner since 2022 Valencia