Employment - Legislative and case law developments

1. In the absence of appropriate measures under national law to prevent abuse in temporary employment, converting successive temporary contracts into a permanent one may constitute an appropriate measure to prevent abuse of temporary contracts, provided that it does not involve an interpretation of national law that is contra legem

The Court of Justice of the European Union has ruled that certain measures against abusive temporary hiring by public authorities are not effective, such as (i) processes to stabilise the employment of temporary public-sector staff, (ii) keeping the affected person in their position until these processes are completed, and (iii) paying a set amount of compensation in the event the employment relationship is terminated because the position has been filled by a person other than the employee affected by the abuse. Moreover, the European court has held that converting successive abusive temporary employment contracts into permanent employment contracts may be effective against abuse, provided that this does not result in a contra legem interpretation of Spanish law.

2. The disciplinary dismissal of a worker with reduced working hours to care for a child and whose bag was searched without the presence of an employee representative is null

In this case a burglar alarm went off when the worker was about to leave the workplace and the security guard inspected her bag without the presence of an employee representative. The Supreme Court declared the resulting dismissal null since the employee had reduced work hours for child-care purposes.

3. A company’s implementation of a remote working and digital disconnection policy that was not negotiated with the employee representatives did not violate the fundamental right to freedom of association

A trade union filed an action for protection of fundamental rights against a company on the grounds that its right to freedom of association had been violated by the company’s implementation – without prior negotiation – of a remote working and digital disconnection policy. The National Court (Audiencia Nacional) held that there was no violation, since the fact that the remote working agreements were adhesion contracts did not in and of itself mean that they were null. Moreover, the claimant union did not have standing to participate in the negotiation of the collective bargaining agreement that had allegedly been infringed. Finally, article 88 of the Data Protection Law (LOPD) was respected, since a prior hearing with the employee representatives had been held regarding this issue.

4. The 2021 reform does not affect the applicability of a company-specific collective bargaining agreement entered into prior to a sectoral collective bargaining agreement that establishes its own wage regime

The National Court has interpreted article 84.1 of the Spanish Statute of Workers, which states that “A collective bargaining agreement, during its term, may not be affected by provisions of agreements with a different scope unless otherwise agreed”, to mean that a subsequent sectoral collective bargaining agreement did not alter a company-specific collective bargaining agreement that predated it, which had to be maintained in its own terms throughout its duration. Thus, the entry into force of a sectoral collective bargaining agreement did not mean that it took precedence in wage matters over the provisions of a prior company-specific collective bargaining agreement which had to remain in force regarding wage matters. And the collective bargaining agreement of the subrogated company in this case had to continue to apply after transfer despite the entry into force of a sectoral collective bargaining agreement, since the company-specific collective bargaining agreement expressly regulated the future application of the sectoral agreement.

5. The right to digital disconnection is not infringed by a company policy that involves superiors calling to enquire about the health of employees on sick leave

The High Court of Justice of Galicia has ruled that the business practice of having coordinators or team leaders telephone subordinates who were on medical leave to enquire about their state of health is lawful and, therefore, does not violate any right of the employees. The tone of the calls was cordial, there was no evidence of coercion of any kind and the coordinators did not enquire about the reason for the sick leave. Moreover, if the first call was not answered or if the worker requested that the calls cease, the company would refrain from making any further calls.

6. No longer possible to receive absolute permanent disability benefits while performing work or an activity that involves being included in any of the social security schemes

The Supreme Court has ruled that the benefits for severe disability and absolute permanent disability are only compatible with sporadic work that does not place the worker in any social security schemes. The National Social Security Institute has adopted criteria to comply with the Supreme Court ruling on this topic and regulates some practical matters, such as maintaining the allowance for carers of disabled workers.