Employment - Legislative and case law developments

1. New Royal Decree 1026/2024 on LGBTI equality and non-discrimination in companies

Royal Decree 1026/2024 develops a planned set of measures for the equality and non-discrimination of LGBTI people in companies with more than 50 employees. It regulates the negotiation of these measures and establishes their minimum content, as well as an action protocol in response to harassment and violence against LGBTI people. These measures must be negotiated through collective bargaining, and take into consideration the scope of the applicable collective agreement and whether the company has employee representatives. One of the main issues the Royal Decree fails to address is a specific penalty system, which raises concerns about how the labour authorities will ensure compliance.

2. Court of Justice of the European Union rules on the application of Directive 2008/104 to companies not formally recognised as temporary employment agencies under Spanish law

The Court of Justice of the European Union has ruled that companies do not need to have an administrative authorisation to be classed as temporary employment agencies. Therefore, companies that lack such authorisation but hire workers in order to assign them temporarily to a user company fall within the scope of the Directive. This allows such workers to claim the same working conditions as employees who are directly hired by user companies, including the right to receive the same salary.

3. Court of Justice of the European Union rejects gender discrimination claim by Air Nostrum cabin crew

The Court of Justice of the European Union has rejected a claim for indirect discrimination on the basis of gender. The issue at hand was that Air Nostrum was providing its cabin crew, who are mostly women, with lower daily subsistence allowances than its pilots, who are mostly men. The Court of Justice of the European Union ruled that although the allowances fall within the concept of “pay”, the difference in pay does not constitute indirect discrimination given that the nature and value of the work carried out by cabin crew members and pilots is not the same.

4. Supreme Court upholds six-month notice period for collective redundancies owing to workplace closures

The Contentious-Administrative Chamber of the Supreme Court has rejected an appeal lodged by the Spanish Confederation of Business Organisations, which sought to invalidate a provision of Spanish Royal Decree 608/2023. The provision requires that labour authorities be given six-months’ advance notice when a collective redundancy involves the closure of the workplace, and as a result the permanent cessation of the activity and the dismissal of 50 or more employees.

5. Supreme Court holds that a requirement to exhaust mediation before calling a strike does not violate the right to strike

The Supreme Court has ruled that a requirement that a prior mediation process be exhausted before calling a strike, as stipulated in the Agreement on the Extrajudicial Resolution of Collective Labour Disputes in Andalusia, does not violate the fundamental right to strike. This agreement, resulting from the mutual consent of both employee and employer representatives, is a statutory collective agreement that is binding on all employees and employers falling under its scope. The Supreme Court concluded that it does not limit the right to strike as it does not prevent negotiations from taking place at any time.

6. Working conditions of employees who do not fall under the scope of a collective bargaining agreement cannot be modified

The Supreme Court has ruled that the removal of benefits from a company’s collective bargaining agreement does not affect employees who do not fall within the scope of the agreement. In this case, the company’s sustainability plan, which focuses on growth through low-carbon technologies and measures to reduce emissions across the company, did not justify the existence of production grounds that are required under article 41 of Spain’s Statute of Workers to make substantial changes to employee working conditions.