Employment - Legislative and case law developments
April 2023
1. New state pension reform introduces important changes to the General Social Security Law
Royal Decree-Law 2/2023 of 16 March introduces urgent measures to increase pensioners’ rights and foster a sustainable public pension system. These measures include a “solidarity” contribution payable by employees with salaries exceeding the maximum contribution base amount; an intergenerational equity mechanism; a new model for calculating regulatory base amounts; and the obligation for interns to be included in the social security system during their internships, even if they are unpaid.
2. Government approves a new order to update 2023 social security contribution rates in line with the new minimum wage and to include a new contribution rate for artists
In addition to updating social security contribution rates in line with the new minimum wage, the order establishes a new formula to calculate the social security contributions payable by artists receiving unemployment benefits and regulates the payment of the social security contribution differences under the new regime.
3. Whistleblowing: worker’s right to freedom of expression
The European Court of Human Rights has ordered Luxembourg to pay damages to an employee it had convicted for leaking confidential information about his employer in the “LuxLeaks”case. The Grand Chamber ruled in favour of the former employee, declaring that the public interest in the leaked information on tax evasion was essential and outweighed any other detrimental effect.
4. Company insolvency: country in which a company carries out its business activity must guarantee the unpaid wages of a remote worker
The Court of Justice of the European Union has ruled that the Member State in which the insolvent company carries out its activity is responsible for the unpaid wages of the insolvent company’s remote workers, regardless of the fact that those remote workers are contractually bound by the laws of their country of residence and make social security contributions to that country’s social security system.
5. Canteen and cafeteria services considered an integral part of Madrid’s municipal senior centres
For the purposes of establishing the main contractor’s liability for the wage and social security obligations of its contractors and subcontractors, canteen and cafeteria services are considered a necessary and inherent part of the public service provided in municipal senior centres.
6. Remuneration register and equal pay audit must include data for all professional categories, regardless of the gender and number of workers per category
Even if only one worker is assigned to a specific professional category, a company must include their remuneration in the remuneration register and equal pay audit. Processing this personal data is justified by the need to ensure equal pay and opportunities in the workplace.
7. Convention No. 158 of the International Labour Organisation: terminating employment without a prior hearing declared unfair
Even in cases where Spanish legislation does not require a prior disciplinary hearing, the application of an international treaty means that the dismissal would be declared unfair. Convention No.158 states that when the reasons for terminating employment relate to a worker’s conduct or performance, employment cannot be terminated before a worker has the opportunity to defend themselves against the allegations.
8. High Court of Justice of Catalonia requests a preliminary ruling from the Court of Justice of the European Union regarding the applicability of the EU Directive on collective redundancies in voluntary retirement of entrepreneurs.
The Spanish Workers’ Statute does not provide for a consultation period when contracts are terminated due to an entrepreneur’s voluntary retirement, despite all the collective redundancy requirements under Council Directive 98/59/EC being met.
