Employment - Legislative and case law developments

June 2023

1. Employee entitled to financial compensation for not taking part of their annual leave due to illness

Workers will be entitled to financial compensation for any annual leave they have accrued during the year or the carry-over period established under Spanish law that remains unused owing to unforeseen circumstances, such as an illness.

2. State pension may be cancelled immediately after its approval with a view to re-applying in the future

The Spanish Supreme Court has granted an employee the right to cancel their state pension application, and apply at a later date, so that they can continue to work and therefore receive a higher pension in the future.

3. Employees have an automatic right to reinstatement after parental leave; length of parental leave implies certain differences

An employee on parental leave is entitled to be reinstated in the same job if they have taken less than one year of parental leave. After two or three years of parental leave, workers are entitled to return to a job in the same professional group or equivalent category.

4. Employee representatives cannot enter the workplace to carry out their representative duties while they are in the process of challenging their contract termination

A company’s refusal to allow employee representatives whose contracts have been terminated for disciplinary reasons to enter its premises to exercise their representative powers is not considered employer anti-union practice.

5. Transfer of undertakings: partial retirement

The transferee company must employ workers who cover employees who have taken partial retirement if they have not been transferred and their contract is terminated, by the original company, before the person who has taken partial retirement has reached full retirement age.

6. Probationary period that refers to the applicable collective bargaining agreement, which simply establishes a maximum duration, is declared invalid

A probationary period that says “as stipulated in the applicable collective bargaining agreement”, which in turn simply establishes a maximum for probationary periods, has been declared invalid given that employees have the basic right to be informed of the duration of their probationary period since during that period employers are entitled to terminate the employment contract without giving any notice or paying any severance.

7. Paid leave must be taken on working days

Unless established otherwise in the applicable collective bargaining agreement, paid leave must only be taken on working days, which is when absences must be justified. On non-working days there is no requirement to justify absences since there is no obligation to provide services.

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Juan Reyes

Partner since 2011 Barcelona

Ana Alós

Partner since 2016 Barcelona

Raúl Boo

Partner since 2022 Valencia