Employment - Legislative and case law developments

16 October 2023

1. A worker who provides services through cross-border remote work may request that the domestic social security legislation of the country where their employer’s premises or domicile are located be applied to them

A framework agreement signed by Spain establishes that workers who work remotely in a state other than that in which their employer’s premises or domicile are located may request that the rules of the state where their employer is located be applied to them, provided that the cross-border remote work carried out in their own state of residence represents less than 50% of their total working time.

2. COVID-19 infections suffered by health workers in performance of their duties will no longer be classified as an occupational accident or disease, and infections or  isolations of workers caused by COVID-19 will no longer be considered equivalent to an occupational accident

The measures that established that COVID-19 infections suffered by staff at healthcare centres were classified as an occupational accident or disease for the purposes of receiving the Social Security benefits provided for these contingencies no longer apply. Similarly, COVID-19 infections or isolations suffered by workers are no longer considered, for the purposes of calculating entitlements to – and the conditions of – benefits, equivalent to occupational accidents.

3. The National Social Security Institute’s systematic denial to men of the maternity supplement regarding the permanent-disability pension is discriminatory and compensation should be awarded to remedy it

In response to a 2019 CJEU ruling, the National Social Security Institute adopted an approach pursuant to which, prior to the amending of the wording of article 60 of the Spanish Social Security Law, applications for the maternity supplement filed by men would be automatically rejected. The CJEU has held that rejecting an application submitted by a man on the basis of this rigid administrative criterion constitutes discrimination that must be remedied by retroactive recognition of the supplement and payment of the due compensation.

4. Disciplinary dismissal based on an infringement of the fundamental right to ideological freedom is void, even if the ground alleged in the letter of dismissal appears, on its face, justified

The Spanish Constitutional Court has analysed the appeal lodged by a bank employee who was dismissed by the Moroccan company for which he worked after attending a political demonstration related to the situation in the Rif in northern Morocco. The court ruled that, although the ground the company alleged for the dismissal (publishing photos taken at his workplace that contained political messages) could be justified, the real reason behind the dismissal violated the fundamental right to ideological freedom.

5. A substantial modification of collective working conditions is partially void if the insufficiency of the documentation provided relates exclusively to one of the grounds invoked, and not to all of them as a whole

In this case, the Supreme Court found that the company had provided insufficient documentation during the consultation period with regard to the measure related to the economic grounds for the substantial modification of collective working conditions the company was carrying out. Consequently, the court stated that it could not declare the collective measure totally void, but rather only partially void, resulting in the specific economic measure that was not adequately justified becoming ineffective.

6. The right to digital disconnection is not a fundamental right and its violation does not imply the right to compensation

In this ruling, the regional Higher Court found that the right to digital disconnection has not been sufficiently defined, which implies its exclusion from the expressly enumerated list of specially protected fundamental rights. This meant that, in the case in question, compensation should not be awarded to remedy a potential infringement of the right .

7. A worker’s testimony is sufficient to prove the occupational nature of an accident, provided the testimony is credible, unchanging and consistent with other evidence

In this judgment, the regional Higher Court ruled that the testimony of a female worker constituted valid evidence for determining the nature of an accident given that it was considered to be credible, unchanging and consistent with other evidence.

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