Employment - Legislative and case law developments
15 December 2023
1. Taking over a notary’s office may constitute a transfer of undertakings
Council Directive 2001/23 of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, is applicable when a notary takes over a previous notary’s record books and a substantial part of their staff and continues to carry out the same activity on the same premises with the same resources, as they are maintaining the identity of that previous notary’s office.
2. Member States can limit the right to carry over holidays not taken due to long-term sick leave
The Court of Justice of the European Union has ruled that national legislation or practices can establish a time limit for carrying over paid annual leave that a worker has accrued but not exercised due to being on long-term sick leave.
3. A worker’s right to reduce their working hours to care for a minor does not mean they can change their shift-work system
The Spanish Supreme Court has ruled that any reduction in working hours to care for a minor, under article 37.6 of the Statute of Workers, must take place within the worker’s ordinary working day and therefore does not give them the right to change their shift-work system.
4. The transport supplement is part of a worker’s salary when it is paid even if they do not commute or travel for work
The Spanish Supreme Court has held that the transport supplement does not count as part of a worker’s salary when it compensates actual expenses assumed by the worker, but is part of their salary when it is paid even if the worker does not travel or commute, in which case the supplement does not have to be increased in line with a mandatory minimum salary increase.
5. Health and safety representatives of the Basque Government’s Department of Security may accumulate among themselves paid time off to carry out their duties
The Spanish Supreme Court has held that the rights, guarantees and prerogatives granted to worker representatives under article 68 of the Statute of Workers also apply to health and safety representatives, including the right to accumulate among themselves paid time off to carry out their duties, such that hours can be shared among representatives.
6. When a dismissal is declared unfair and the company opts to pay compensation, it should not include back pay, which should instead be claimed through provisional enforcement
The Spanish Supreme Court has held that it is not appropriate to include back pay accrued during the time a dismissal case is being processed as part of the compensation payment for unfair dismissal, and that the only avenue to request this is through provisional enforcement.
7. The provincial manager of the Agency for Innovation and Development of Andalusia has an ordinary employment relationship
In this case, the Spanish Supreme Court analysed whether the provincial manager’s relationship with the Agency for Innovation and Development of Andalusia was actually that of a senior executive (a “special” employment relationship), as described in the contract, or whether it should be deemed an ordinary employment relationship. The Supreme Court concluded that it was an ordinary employment relationship and therefore held the dismissal to be unfair.