Employment - Legislative and case law developments

16 May 2024

1. No minimum notice period for shift work

Unlike irregular working hours, which an employee must be informed of at least five days in advance in accordance with article 34.2 of the Amended Statute of Workers, approved by Royal Legislative Decree 2/2015 (“SW”) there is no minimum notification period for shift work. Therefore, a collective bargaining agreement provision that establishes a shorter notice period is valid.

2. Quebranto de moneda payments not linked to hours worked

In Spain, workers who are required to handle cash (e.g. cashiers collecting payments from customers) may be entitled to a special non-salary payment that compensates them for the risk of harm they face of having amounts deducted from their salary when there are shortfalls in takings. Those payments cannot be reduced for part-time employees, even if they spend less time handling cash than full-time employees. The Supreme Court has held that their lower exposure to the risks related to handling cash does not justify treating them differently from full-time staff.

3. Works council can be notified of a redundancy after the fact

Employee representatives may be notified of an individual redundancy on objective grounds after it takes place, provided that the delay is reasonable and does not prevent the representatives from exercising the rights triggered in these situations. In this case, the chairman of the works council was aware of the redundancy at the time it took place, and the one-week period in officially notifying the works council with a copy of the redundancy letter was held not to be excessive.

4. A company cannot refuse to recognise a trade union section or its representative

One of the ways in which trade unions can organise themselves internally is in sections. When a trade union sets up a section in a company, the company must recognise it, even if it is a minority trade union whose members are not part of the company’s works council. Similarly, the company cannot refuse to recognise the appointment of the union section representative.

5. Unilaterally adopted equality plans can sometimes be valid

The Supreme Court has ruled that in specific circumstances a company may register a unilaterally adopted company-wide equality plan (Plan de Igualdad de ámbito empresarial) in the Register of Collective Bargaining Agreements and Equality Plans (Registro de Convenios Colectivos y Planes de Igualdad). This exception applies when the largest trade unions in the company repeatedly fail to participate in the negotiations in breach of their good faith duty.

6. High Court of Justice of the Basque Country upholds additional unfair dismissal compensation

The High Court of Justice of the Basque Country (“TSJPV”) has held that the statutory compensation for unfair dismissal may at times be insufficient. In this specific case, the employee had resigned from a permanent position to take up a new job, which he was dismissed from a few days later. In light of the “meagre” compensation that he would have been entitled to, the TSJPV upheld the first-instance decision that had awarded him additional compensation equivalent to the salary that he would have received during the minimum one-year duration of the contract.

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