Employment - Legislative and case law developments

October 2022

1. Setting up a business will be easier and faster under the “Create and Grow” Law

Law 18/2022 of 28 September aims to facilitate the creation of companies, boost their growth and expansion, reduce regulatory obstacles and combat late payment in commercial transactions.

2. Employers must encourage employees to use their holiday entitlement; otherwise the entitlement will be carried forward

The Labour Chamber of the National Court has dismissed the claim that an employee’s accrued holiday allowance is lost after three years when the employer has not enabled them to effectively exercise their right to take holiday.

3. Paid annual leave entitlement does not expire while employee is unfit for work.

The Court of Justice of the European Union has held that an employee maintains their entitlement to paid annual leave accrued during the period that they worked before stopping to take medical leave.

4. Employee representatives must continue to work during a transfer of undertakings

The Supreme Court has confirmed that a transfer of undertakings does not in itself terminate the employee representatives’ mandate. The representative bodies remain in place and they must continue to fulfil their mandate and carry out their duties under the same terms and conditions until changes are made.

5. Supreme Court holds that not listing cleaning as a profession that may cause occupational diseases is discriminatory

The Supreme Court has held it is indirectly discriminatory that the profession of cleaner is not on the list of professions that can cause occupational diseases. It found that the discrimination is gender-based because while some traditionally “masculine” jobs are presumed to involve repetitive or awkward movements, cleaning is not, despite the fact that the tasks performed can cause joint injuries.

6. Furlough (ERTE) and temporary incapacity periods excluded from severance pay calculations

The Supreme Court has held that if an employee is dismissed while on furlough or medical leave, irregular wages received while on leave cannot be taken into account when calculating the average income in the year prior to the dismissal for severance pay purposes.

7. A company may monitor employee representatives’ electronic communications as permitted by the collective bargaining agreement

The Supreme Court’s Labour Chamber has confirmed that a rational and appropriate use of company email accounts to contact groups of employees when negotiating matters such as trade union representation and elections is legitimate, and this is subject to monitoring by the company. The company may also authorise the use of e-mail for other matters when special circumstances justify it.  

8. Dismissal of an employee after she announced her intention to work remotely and to reduce her working hours is null

An employee’s e-mail to the human resources department is sufficient proof that the company was informed of her wish to work remotely and to reduce her working hours to care for a dependant; therefore, her subsequent dismissal was null.

Contact lawyers

Juan Reyes

Partner since 2011 Barcelona

Ana Alós

Partner since 2016 Barcelona

Raúl Boo

Partner since 2022 Valencia