Employment - Legislative and case law developments

1. Time spent travelling at the employer’s request counts as working time

The Court of Justice of the European Union (CJEU) has ruled that compulsory travel by workers, where they must travel together from a specified employer-designated location to the designated work site at a specified time, using a company vehicle, constitutes “working time” under Directive 2003/88/EC.

2. No illegal transfer of workers in the case of school support services for students requiring educational support in Andalusia

The Spanish Supreme Court has ruled that the transfer of educational needs support staff hired by companies awarded contracts by the Regional Government of Andalusia was unlawful. The court found that the contracting companies had effectively exercised the organisational and managerial powers of the employer.

3. Court clarifies employment status of dentists working in clinics

The Spanish Supreme Court has ruled that dentists working for a healthcare company within its organisational scope, under its instructions and guidelines, are employees of that company. This means that the requirements of subordination (dependencia) and working on behalf of another (ajenidad) are met.

4. Court upholds full absenteeism bonus for workers with reduced hours

The Supreme Court has ruled that workers on reduced hours are entitled to receive the full absenteeism bonus, which accrues based on the days they work and the days they are absent. The court also noted that gender is a relevant factor in such cases, given that it is primarily women who reduce their hours to care for children or other relatives.

5. Correcting a regulatory infringement justifies a substantial modification of working conditions

The Spanish Supreme Court has ruled that a company may invoke valid organisational reasons to modify working conditions in order to regularise an existing situation, provided that restructuring the work system is legally required. The company is free to choose the alternative that best suits its interests from among those that are legally valid, provided it does not act arbitrarily or disproportionately. If the modification is the result of a previous breach by the company, this does not invalidate the organisational cause, as long as the regularisation derives from an objective cause that justifies the substantial change to working conditions.

6. Court confirms occupational nature of Covid-19 in the healthcare sector

The Supreme Court has ruled that healthcare workers who contracted Covid-19 during the pandemic should be considered to have suffered a recognised occupational illness under Spanish law. This is because the virus is biological and the risk environment falls under the general category of infectious diseases that can be transmitted in healthcare settings.

7. Failure to negotiate working hours means worker’s request prevails

The Supreme Court has provided clear guidance on the company’s failure to follow the process set out in article 34.8 of the Workers’ Statute. The court has ruled that employers must initiate the negotiation process and cannot circumvent this procedure by directly rejecting a request, even if the employer has valid reasons to do so. Failure to comply with this procedure results in the automatic granting of the employee’s working-time-adjustment request.

8. Government moves ahead with decree on working-time recording under the Workers’ Statute

After the working-hour reduction bill was rejected by Parliament, the Government has approved a draft royal decree on the recording of working hours. This implements the obligations of article 34.9 of the Workers’ Statute, which establishes stricter requirements. These include the obligations to digitise records, include minimum content (worker identification, the exact start and end times of the working day, whether they took any breaks, the type of work they do, and the type of hours worked), rigorously manage any modifications with the company’s and worker’s authorisation, give employees, employee representatives and the Labour Inspectorate immediate access to the records (even remotely) and draw up an internal protocol in consultation with the employee representatives.