Employment - Legislative and case law developments

1. Approval of the procedure for determining when the retirement age may be brought forward  

Royal Decree 402/2025 of 27 May establishes the process for identifying cases where it is appropriate to bring forward the retirement age under the Spanish social security system. This is done by applying reduction coefficients for occupations or professional activities that are exceptionally arduous, toxic, dangerous or unhealthy, with high illness or mortality rates.

2. Pension gender pay gap supplement is again held to be discriminatory

The CJEU has held that a supplement for mothers who receive a contributory retirement pension is contrary to EU law. This is because the same supplement for fathers is subject to additional conditions based on their careers having been interrupted or affected by the birth or adoption of children, which makes it discriminatory.

3. Refusing to admit a claim because the claimant failed to provide a copy of the dismissal letter infringes their right to access to justice

The Constitutional Court has held that a dismissal claim cannot be rejected on the grounds that it is not accompanied by the dismissal letter when the claim adequately refers to the letter’s contents and the claimant proves that they do not possess the letter because the other party never provided it, despite having requested it in the statement of claim.    

4. Using detectives to monitor use of facility time is lawful

The Supreme Court has declared that it is lawful for a company to use detectives to monitor how union delegates use their facility time (crédito sindical), as long as it has well-founded suspicions that they are misusing it and that their rights to privacy, dignity or freedom of association are not infringed.    

5. Some situations cannot be considered absences for calculating bonus entitlement

The Supreme Court has ruled that an employer’s decision to consider the following periods as absences when determining whether a worker is entitled to receive an extra wage payment (paga extraordinaria de beneficios) is null: the use of union time credit; temporary illness; carers’ or parental leave, if doing so breaches fundamental rights such as freedom of association, non-discrimination and joint responsibility for family matters.

6. Remote workers can choose the forum for their unfair dismissal claim

The Supreme Court has ruled that, if a remote worker is dismissed, they have discretion to select the applicable forum between the place where they provide the services and the employer’s registered address, regardless of where the worker is formally assigned to work from.

7. The exclusion of temporary staff from extra pay offered to permanent staff under a collective bargaining agreement is only permissible if there are objective grounds for doing so.

The Supreme Court has ruled that two articles of the Fifth General Collective Agreement for the airport ground handling services sector are null for being discriminatory, as only permanent staff receive extra pay for irregular or flexible shift work, on-call availability and extra pay for  FTP (i.e. work carried out by permanent part-time workers) and there is no objective reason for excluding staff with fixed-term contracts.

8. A company’s decision to move the distribution of working hours to weekends is a substantial modification of working conditions

The Supreme Court has ruled that, although their employment contract established a Monday to Sunday working week, workers had been finishing their working week on Fridays for five years. Therefore, the company’s unilateral decision to change the working week from Monday to Friday to Monday to Sunday without following the procedure set out in article 41 of the Statute of Workers was null.