Employment Newsletter
Legislative News
1. Royal Decree 87/2025, of 11 February, establishing the minimum interprofessional wage for 2025
After the non-ratification of the Royal Decree-Law 9/2024, of December 23, which adopted urgent measures in economic, tax, transportation and social security matters, a new Royal Decree which sets the minimum interprofessional wage ("MIW") for year 2025, with retroactive effect as of 1 January 2025, was published in the Official Gazette on 12 February 2025.
The new amount, which represents an increase of 4.41% with respect to the MIW for 2024, amounts to 16,576 euros per year (in 14 instalments).
As a fundamental innovation and not exempt from controversy, it is worth highlighting that 700 euros of this amount will be subject to Personal Income Tax.
2. Order PJC/178/2025, of February 25, developing the legal rules on social security contributions, unemployment, protection for termination of activity, Wage Guarantee Fund and professional training for the fiscal year 2025
The maximum contribution base for the General Social Security Regime is established in 4,909.50 euros per month, as well as the minimum contribution base, which cannot be less than 1,381.20 euros per month. These concepts will have effect as from 1 January 2025.
Judgements
1. The obligation of the European Union authorities to initiate a dialogue and conciliation procedure applies to discrepancies concerning the authenticity of social security coverage certificates (A1)
Judgment C-421/23 of the European Court of Justice, Seventh Chamber, of 23 January 2025
A Portuguese businessman hired 650 workers to displace them to Belgium for construction work, using false social security coverage certificates (A1) from the country of origin (Portugal). The Belgian court rules that there had been a social security fraud, as well as for having used false documents.
The Portuguese businessman appealed this decision, arguing that it was mandatory to follow the dialogue and conciliation procedure provided for in Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems ("Regulation 883/2004") when there were fraud indications, a formal requirement that he considered that the Belgian court had not complied with. The European Court of Justice:
(i) confirmed that Regulation 883/2004 does apply and that it is a mandatory preliminary step in determining the existence of fraud; and
(ii) maintains that the Belgian court had complied with the requirement to enter into a dialogue with the Portuguese authorities, who, at a time prior to the initiation of the criminal proceedings, had been consulted about the documents falseness (and had confirmed it).
2. The territorial jurisdiction to file claims in the social courts by hauliers is the company's domicile
Judgement 104/2025 of the Supreme Court, Social Chamber, of 5 February 2025
The case starts when a haulier intends to challenge his dismissal before the court of his domicile, relying on the possibility recognized in Article 10.1 of the Law regulating the Social Order ("LSO") for workers who provide services across several territories.
The Supreme Court ("SC") considers that in order to be able to choose the jurisdiction of the plaintiff's domicile, it is necessary that services are rendered simultaneously and not successively in different territories and that the rendering of services in such territories has a certain permanence and continuity. Therefore, it concludes that a haulier who, as an essential part of his work and a defining element thereof, must travel to different parts of Spain and Europe and begins and ends his journeys at the company's place of business, would not fall into this category of workers. Therefore, in order to determine the territorial jurisdiction, the general rule of the defendant's domicile applies.
3. Validity of the extension of the judicial claim requesting the dismissal of a pregnant worker being considered null and void
Judgement 91/2025 of the Supreme Court, Social Chamber, of 4 February 2025
A dismissed worker appeals her contract termination requesting in the conciliation claim that her dismissal shall be declared unfair while in the lawsuit broadens her claim, requesting that the dismissal shall be declared null and void.
The SC declares the nullity of the worker's dismissal because it considered that the opposing party was not left defenceless since (i) the variation of the claim would not affect the possibility of conciliation since the defendant company did not attend the conciliation act; (ii) the judicial claim contained all the necessary facts and the company had had several months to prepare its defence; and (iii) the LSO prevents alleging new facts in the claim, but does not prohibit modifying the "petitum" or what is being requested.
It is stated that the objective and automatic dismissal nullity is applicable when the worker is pregnant. It adds that the formal requirements should not be interpreted strictly, especially if the case is linked to a non-discrimination right on the basis of sex.
4. A heart attack suffered at work is not considered a work-related accident if the worker had suffered discomfort the day before and ignored medical advice
Judgement 85/2025 of the Supreme Court, Social Chamber, of 3 February 2025
This judgement refers to the case of a bricklayer who suffered a heart attack while working. The day before the worker went to the health centre because he was already suffering from discomfort. He was told to go to a hospital but he ignored the advice. The following day he suffered a heart attack classified as a work-related accident.
The SC considers that the legal presumption of Article 156.3 of the Royal Legislative Decree 8/2015, of October 30, which approves the revised text of the General Social Security Law ("GSSL") by virtue of which injuries which take place at work are considered work-related accidents (unless proven otherwise), should not operate. Specifically, it states that (i) it cannot be proven that the symptoms were aggravated as a result of or during work; (ii) the worker was performing his ordinary work, without making any exceptional efforts; and (iii) the fact that he ignored the instructions given to him at the health centre and did not go to the hospital is considered a reckless imprudence.
5. Priority application of a prior in time company collective bargaining agreement with respect to a later sectoral collective bargaining agreement
Judgement 59/2025 of the Supreme Court, Social Chamber, of 29 January 2025
In the context of a collective dismissal of a contracting company, there is a discrepancy between the prevalence of the previously approved company collective bargaining agreement and the subsequent concurrent collective agreement to be applied to consider the regulatory salary for severance purposes.
The SC resolves that the company's collective bargaining agreement must be applied on the following grounds:
(i) Article 42.6 of Royal Legislative Decree 2/2015, of October 23, which approves the revised text of the Workers' Statute Law ("WS"), establishes that, when a contracting company has its own agreement prior to the sectoral agreement, that will be the applicable one (this in an exception to the general rule according to which the sectorial collective agreement applies to the workers of a contracting company);
(ii) according to Article 84.1 WS (by reference of Article 42.6 WS), in the event of concurrence between collective agreements, the collective agreement that is previously in force will prevail. This implies that the company's collective bargaining agreement will have priority over the sectoral agreement if it is prior, as is the case at hand; and
(iii) Article 84.2 WS, which allows companies to sign their own collective agreements with priority of application on certain specific matters -such as overtime, shifts or distribution of working time- even when there is a sectoral agreement in force, is not applicable in the case at hand, since the company's collective bargaining agreement is prior and, therefore, the applicative priority is determined by Article 84.1 WS.
6. Absence of joint and several liability of the main company for the benefit surcharge imposed on the contracting company if the activity is not carried out at its workplace and there is no workforce
Judgement 48/2025 of the Supreme Court, Social Chamber, of 23 January 2025
The SC considers that there is no joint and several liability of the main company for the benefit surcharge for a work related accident that occurred to a contracting company worker. The SC concludes that there is no breach by the main company because the contracting company's activity was not carried out at the main company's workplace and, consequently, there was no duty of supervision or coordination attributable to the main company.
In addition, the main company had not hired any workers to perform the activity, having completely outsourced the activity. So, the SC considered that there was no need for business coordination in the execution of the service.
7. The risk prevention responsible employee has the right to choose between reinstatement or compensation in cases of unfair dismissal
Judgement 39/2025 of the Supreme Court, Social Chamber, of 20 January 2025
The SC concludes that, just like the workers' legal representatives and union delegates, the designated risk prevention employee has the right of choice in the event of unfair dismissal (receive compensation or be reinstated), even if the infringement for which they have been dismissed is unrelated to their tasks as risk prevention responsible employees, since:
(i) Article 30.4 of Law 31/1995, of 8 November 1995, on Occupational Risk Prevention, expressly provides that these employees may not suffer any detriment derived from their occupational risks protection and prevention activities in the company and refers to Article 56.4 WS; and
(ii) the aforementioned art. 56.4 WS provides that, in the event of dismissal declared unfair, the employee legal representatives and the union delegates may choose between receiving the severance pay or the reinstatement.
8. Non-compliance not related to the duties inherent to the job is considered a breach of contractual good faith, and is not considered negligence
Judgement 37/2025 of the Supreme Court, Social Chamber, of 16 January 2025
A bank entity categorises the conduct of an employee a very serious infringement as a consequence of the breach of contractual good faith and breach of trust in the performance of the work and fraud or disloyalty in the entrusted tasks. The employee appeals the dismissal alleging that his conduct should be considered a negligence in the performance of his duties and, consequently, his dismissal should be declared unfair, based on the applicable collective bargaining agreement.
The SC considered that his acts could not be classified as negligent because they had been conscious and voluntary and the worker was not acting within the framework of the functions inherent to his job position.
9. The company cannot unilaterally determine what is to be understood as the "summer period" within which summer vacation is to be taken in accordance with the collective bargaining agreement
Judgement 8/2025 of the National High Court, Social Chamber, of 23 January 2025
A collective dispute lawsuit was filed requesting the nullity of a company's internal vacation policy. In view of the lack of clarity of the applicable collective bargaining agreement, which merely stated that there were two weeks of holidays which had to be taken during the summer, the company established in its policy that this summer period was from 9 June to 14 September of 2025. The union representatives considered that the astronomical summer period should be considered (from June 21 to September 21 of the year 2025), that is, from the summer solstice to the autumnal equinox.
The SC understands that, in the absence of an additional agreement, the company cannot attribute to itself the unilateral power to extend the summer period, especially when the company does not prove that such a measure is more beneficial and/or favours the workforce's conciliation.
To keep an eye on
1. Possible implementation of a system which provides the Labour Inspectorate to be able to access the company's workday records in fall
As mentioned in the previous Newsletter of Ashurst's Labour Law and Data Protection Team (Consult here) one of the main news to be taken into account is the approval of the Preliminary Bill for the reduction of the working day.
One of the essential new features of the Preliminary Bill is the Labour Inspectorate's possibility of accessing remotely the working day records of all companies. As we have learned, development is already underway on IT solutions and, if the current text of the Preliminary Bill is approved, its implementation is planned for autumn 2025.
2. Parental leave remuneration
Since August 2024, Spain has been infringing Directive 2019/1158 of the European Parliament and of the Council of 20 June 2019, under which the 8 weeks' parental leave is to be paid.
However, despite the fact that this directive has not yet been transposed, there are already court judgements that recognize the workers' right to be paid the 8 weeks' parental leave.
3. Criterion of the Social Security General Institute 3/2025, of 13 February, regarding the compatibility of the retirement pension with work
It is provided that if a pensioner has made compatible his/her retirement pension with work and has not previously notified the managing entity, he/she will not be considered to have unduly received the pension if all of the following elements are complied: (i) the employer or the interested party has informed the Social Security General Treasury; (ii) the registration in the Social Security system is on record; (iii) there is no intention to conceal the situation; and (iv) the contribution is valid in accordance with the regulations.
However, the receipt of the part of the pension that exceeds the limits of article 214.2 GSSL, will be considered undue, that is, 50% of the amount of the pension (unless he/she is self-employed and his/her annual income does not exceed the MIW).
