Employment - Legislative and case law developments

November 2022

1. Directive requires Member States to set statutory minimum wage to reach salary thresholds.

European Directive 2022/2041 provides that Member States must update statutory minimum wages in line with their respective job markets. It also stipulates minimum requirements for negotiating and agreeing minimum wages through collective bargaining. The purpose of these measures is to improve the working conditions and remuneration of EU workers.

2. Compensation fund created to redress asbestos exposure.

Law 21/2022 of October 19 creates a compensation fund for asbestos victims to compensate the damage suffered by anyone who has a recognised occupational disease caused by asbestos or a condition related to asbestos exposure. This compensation includes the beneficiaries’ successors.

3. Public-sector personnel receive a pay increase and measures are introduced to support temporary agricultural workers affected by the drought.

Royal Decree-Law 18/2022 of 18 October, with effect from 1 January 2022, establishes an additional 1.5% increase in the remuneration of public sector personnel compared with that in place on 31 December 2021. Moreover, unemployment benefit for temporary agricultural workers in Andalusia and Extremadura has been made more accessible.

4. A private undertaking may prohibit visible religious or philosophical signs provided that the provision is applied generally and without distinction.

The Court of Justice of the European Union has ruled that there was no direct discrimination on grounds of “religion or belief” in a company’s internal policy prohibiting workers from wearing signs or clothing with religious connotations. At the same time, the court points out that the relevant national court must determine whether a difference in treatment based on religion or belief is a disadvantage for those who profess a religion.

5. Unjustified delays at the Seville labour courts breach article 24 of the Spanish Constitution.

The Constitutional Court has declared a violation of the right to a public trial without undue delays concerning labour proceedings in which the claim was accepted in July 2021 and the preliminary conciliation and hearing were scheduled for November 2024. The court’s lack of resources were not a valid reason to excessively delay the scheduling of the hearing.

6. The Constitutional Court assesses the limits of company control through video surveillance systems following the introduction of the Basic Law on Data Protection and the guarantee of digital rights.

An employer carried out a disciplinary dismissal following suspicious conduct by an employee, with the main evidence being video surveillance images from cameras located in the workplace. The Constitutional Court upheld its opinion, approved the evidence, and declared that the Basic Law on Personal Data Protection had not been violated and that there had also been no violation of the employee’s right to privacy, although with dissenting opinions.

7. Dismissals that do not comply with the prohibition of dismissals established in Royal Decree-Law 9/2020 in general must be held to be unfair.

Royal Decree-Law 9/2020, which introduced internal flexibility measures during the COVID-19 crisis, temporarily prohibited dismissals for economic, technical, organisational and production reasons and force majeure. The Supreme Court has held that these dismissals are unfair and not void, despite the “prohibition of dismissal” set out in Royal Decree-Law 9/2020.

8. Vehicle branding and control of routes and deliveries via electronic devices does not imply an unlawful assignment of employees.

The Supreme Court has declared that there is no unlawful assignment of employees when transport services are outsourced and the contractor company provides vehicles - with the main company’s logos - and personnel, with the main company controlling the drivers, destinations and routes.

9. Attendance and punctuality allowances cannot be lowered proportionally when an employee has reduced working hours.

The Supreme Court confirmed that a proportional reduction of the attendance and punctuality allowances is unlawful in a case where an employee works reduced hours due to legal guardianship. The Court pointed out that neither of these allowances depend on actual working time, but are earned in full simply by attending the workplace and arriving and leaving at the established times.

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