Employment - Legislative and case law developments
1. Royal Decree-Law 1/2023 modifies the employment-incentive system
Royal Decree-Law 1/2023 of 10 January has modified the employment-incentive system of social-security discounts and subsidies and obliged companies that transfer their activities to outside the European Union or the signatory States of the Agreement on the European Economic Area to return all discounts and subsidies received in the past four years. It has also established social-protection measures for artists and modified the contribution base where working hours are reduced or the employment contract is suspended.
2. Basic Law 1/2023 introduces new grounds for temporary disability leave
Basic Law 1/2023 of 28 February has recognised three non-occupational situations as new grounds for temporary disability leave: incapacitating menstruation, voluntary or involuntary termination of pregnancy and late-stage pregnancy (i.e. from the 39th week). The law enters into force on 1 June 2023.
3. Law 3/2023 enhances the role of the Labour Inspectorate in collective redundancies
The new Employment Law of 28 February has expanded the role of the Labour Inspectorate in the collective redundancy procedure by introducing a requirement for it to issue a mandatory report, along with various other employment-related developments, such as the establishment of the Spanish Employment Agency (Agencia Española de Empleo), immunity of the minimum wage from seizure and the expansion of the groups of workers that employment policy should provide stronger protections to.
4. Law 4/2023 introduces important changes in the employment context regarding LGTBI rights
Law 4/2023 of 28 February has made changes in the employment context to guarantee and promote true and effective equality for LGTBI people and their families. The changes include the addition of new prohibited grounds of discrimination in the workplace, new offences regarding equal treatment and non-discrimination, and a requirement for companies with more than 50 employees to implement a protocol to address violence against or harassment of LGTBI people.
5. Refusing to renew or enter into a contract for provision of services with a self-employed person on grounds related to their sexual orientation is discriminatory
The protections of the Employment Equality Framework Directive extend to all professional activities, so a refusal to renew a contract for provision of services with an individual on grounds related to their sexual orientation cannot be justified through freedom of choice, and instead violates the prohibition of non-discrimination.
6. A collective redundancy agreement that provides a lower severance payment for employees over 60 is not discriminatory on the grounds of age
A collective dismissal agreement that, in compliance with the legal minimums, establishes a lower severance payment for employees over 60 years old is not discriminatory on the grounds of age, since this group – which is close to retirement age – receives more state-funded social aid than younger people.
7. A working-time register based on a unilateral declaration by the employee is valid
Establishing a working-time register where the employee simply declares the hours they have worked is valid because the law does not stipulate what specific tool should be used to comply with the legal requirement of having a system for recording employees’ working time. The reliability and objectivity of the register are not undermined by the fact that the information is based simply on a declaration by the employee.
8. Electronic voting is not permitted in elections for employee representatives and works councils
The Workers’ Statute only allows paper voting. The intention of the legislature is clear – if it had wanted to allow electronic voting then it would have given that option. So electronic voting in elections for employee representatives is not valid.
9. Compensation for unfair dismissal can be higher than 33 days’ salary when the statutory severance payment is manifestly insufficient
In order to act as a deterrent, a higher amount of compensation than the statutory severance payment for unfair dismissal can be granted when, in view of the specific circumstances, the exercise of the right to dismiss was excessive, the established compensation was insufficient and a specific amount of compensation was requested.