Employment - Legislative and case law developments

August 2023

1. Photos taken of an employee gardening while on disability leave are unlawful

A detective’s report including photographs of an employee gardening at home despite being on temporary disability leave was invalid as evidence, violated the employee’s privacy and resulted in the dismissal being deemed unfair.

2. When there are no full-time vacancies, the employee on leave will be free to accept the offer of a part-time position, but maintains their right to be reinstated to a full-time position

If an employee on leave of absence accepts reinstatement under a part-time contract when the company has no full-time vacancies, that does not imply a waiver of the right to be reinstated under the same conditions that applied before the leave of absence.

3. The minimum daily rest period between working days does not form part of the weekly rest period; these are separate rights with different objectives

The Court of Justice of the European Union has ruled that the right to daily rest granted in Directive 2003/88 must be observed irrespective of the length of the weekly rest period established in domestic legislation. The daily rest period is taken before the weekly rest period and, when consecutive, the weekly rest period can only begin to run once the employee has already enjoyed the daily rest period.

4. Tracking an employee’s search history is lawful when the computer is strictly for professional use

Monitoring the corporate computer equipment to check whether the employee’s personal use is occasional or regular, when the employee knew that the equipment was strictly for professional use, does not entail an infringement of the right to privacy.

5. The company is obliged to provide salary data in cases where there are two or fewer employees of one sex (regardless of the number of employees of the other sex)

The Labour Chamber of the National Court has held that the corporate practice of removing data on specific job positions because they are only held by persons of one sex or because the remuneration data is identifiable violates current legislation, since it hinders the ability to identify potential indirect sex-based discrimination.

6. Time spent by polling station staff to elect employee representatives is working time

The Labour Chamber of the National Court declared that the time spent by polling station employees in electing employee representatives is working time for all purposes. This is based on the fact that, on the day of the elections, their electoral duties replace their normal work “activities” and, therefore they are working under the direction of the employer, even if the employer is not directly involved in those activities.

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Juan Reyes

Partner since 2011 Barcelona

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Raúl Boo

Partner since 2022 Valencia