Employment - Legislative and case law developments

1. An employer must begin consultations with employee representatives as soon as it takes a strategic decision that forces it to consider or plan collective dismissals.

In response to the High Court of Justice of the Balearic Islands’ request for a preliminary ruling, the Court of Justice of the European Union has held that the obligation to consult employee representatives in collective dismissals arises as soon as the employer considers or plans to reduce jobs in an amount that could exceed the relevant thresholds.

2. Spanish law does not comply with the EU Directive on fixed-term work because, despite the 2021 reform, it does not have effective measures in place to prevent temporary work contracts from being misused in the public sector, nor does it establish adequate sanctions.

In response to the High Court of Justice of Madrid’s request for a preliminary ruling on several matters, the Court of Justice of the European Union has ruled that the Supreme Court’s proposed solution of resorting to non-fixed permanent contracts is not really an effective way of preventing temporary work contracts from being misused in the public sector, as the type of contract it proposed is still temporary. Therefore, Spanish courts must establish more effective deterrents, such as converting fraudulent contracts into permanent contracts.

3. A temporary agency worker must not receive less compensation for permanent disability than they would have received had they been an employee of the hiring company.

In response to the High Court of Justice of the Basque Country’s request for a preliminary ruling, the Court of Justice of the European Union has ruled that a temporary agency worker who was left permanently disabled after a work accident that occurred at the hiring company, and after which their employment with the temporary employment agency was terminated, cannot receive less compensation than they would have been entitled to had they been employed directly by the hiring company.

4. A rule under which an employer can decide not to disclose the grounds for terminating a temporary contract is contrary to EU law.

The Court of Justice of the European Union has held that, in order to protect temporary workers, employers must inform them in writing of the grounds for terminating their fixed-term contract early. Otherwise, the worker would be deprived of the possibility of knowing if their dismissal is unfair and, if applicable, of taking legal action.

5. Employee representatives should be consulted when drawing up policies on how computer equipment and digital devices are to be used at work.

Article 87.3 of the Basic Law on personal data protection must be complied with when digital devices are used for work, so employee representatives must be involved in preparing policies on how digital devices are to be used at work.

6. An unlawful chain of temporary contracts that is discontinued for three months and eighteen days does not break the continuity of employment.

In determining an employee’s length of service for calculating severance compensation, the Supreme Court has held that discontinuing a chain of contacts for three months and eighteen days was not enough to break the continuity of employment in this case.

7. Absences due to force majeure under article 37.9 of the Statute of Workers constitute paid leave.

The National Court has been the first to shed light on the new leave for force majeure reasons and has held that it constitutes paid leave even this is not established contractually or in the applicable collective bargaining agreement.