Employment - Legislative and case law developments

September 2022

1. New measures to prevent sexual violence in the workplace

Basic Law 10/2022 of 6 September on guaranteeing sexual freedom includes a series of measures to prevent sexual violence and harassment in the workplace. The law also entitles victims of sexual offences to the same level of protection at work as victims of gender-based violence.

2. Future employers must not ask job applicants about their health

Law 15/2022 of July 12 on equal treatment and non-discrimination establishes a series of measures to prevent discrimination in the workplace. The largest trade unions must conduct an end-of-year report to follow-up on compliance with the measures.

3. Insolvency law reform gives insolvency judges the authority to declare transfers of undertakings

Labour courts and tribunals no longer have jurisdiction to declare a transfer of undertakings in proceedings initiated by unpaid workers of insolvent companies.

4. Changes for post-doc researchers: investing in science, innovation and talent acquisition

To facilitate access to scientific careers and ensure job stability in this field, post-doc researchers now have a new type of contract which includes the right to compensation on termination.

5. Government gives household employees the same rights as other employees

Household employees are now entitled to unemployment benefits as well as protection from the Salary Guarantee Fund (FOGASA). Health and safety measures have also been improved for these employees.

6. As of 1 January 2023 self-employed workers’ social security contributions will depend on their net income

The social security contributions payable by self-employed workers will be determined by their net income. The social security protection and benefits that they receive have also improved.

7. Denial of an early-retirement pension does not entail employment termination

The Supreme Court has held that if the National Social Security Institute were to refuse to grant a pension to an employee seeking early retirement, their employment contract cannot be terminated without any right to severance.

8. Maternity pay is granted after a stillbirth but not paternity pay

The Supreme Court has held that an employee was not entitled to paternity pay following his child’s  stillbirth at 39 weeks and three days’ gestation, on the understanding that this type of benefit was only payable to his wife, the biological mother.

9. Various employers from the same sector declared jointly and severally liable for the absolute permanent disability of an employee

The Supreme Court has held that each company from the same sector for which an employee worked successively were jointly and severally liable for his absolute permanent disability as a result of his occupational disease. The Court held that in such cases the joint and several liability must be proportionate to the length of time worked in each company.

10. Employer permitted to unilaterally adjust its employee representatives’ time credit in line with its actual number of employees

The Supreme Court has held that the time credit for the employee representatives of a company could be unilaterally adjusted when the headcount fell below 751 and that this adjustment does not infringe the fundamental right to freedom of association.

11. Installing hidden video cameras to monitor suspected theft by household employees is lawful

In specific cases, the fact that a household employee is not informed about video cameras in a property does not mean that the evidence will be declared null provided the surveillance is declared proportionate.

12. Change to a company’s acceptable use policy for workplace technology is null if employee representatives are not consulted

The Labour Chamber of the National Court has declared that employers must consult their employee representatives before setting out or modifying their information technology and devices usage policy, regardless of whether or not the employment contracts include such a clause.

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