Spanish Employment Newsletter January 2024

New Legislation

Maintenance of registration and contribution to the Social Security during the 8 week parental leave regulated in article 48 bis of the SW

Social Security RED Gazette 02/2024 of 22 January 2024

Social Security RED Gazette 02/2024 clarifies the Social Security situation of those employees who take the 8-week parental leave regulated in article 48 bis of the SW, which came into force on 30 June 2023. The Social Security clarifies that during full-time parental leave, the employee's registration and contribution must be maintained. With regard to part-time parental leave, it clarifies that this is pending regulatory development.

Relevant Precedents

The automatic contract termination due to total permanent disability under article 49.1 e) of the SW is contrary to Directive 2000/78 and requires the employer to take reasonable and appropriate measures to preserve employment

Judgment of the Court of Justice of the European Union in case C- 631/2022 dated 18 January 2024

The question arises as to whether article 49.1.e) is contrary to Directive 2000/78. Article 5 of Directive 2000/78 requires the employer to take reasonable adjustments before dismissing people with disabilities in order to preserve employment. Article 49.1.e) of the SW provides that the employment contract shall be terminated "on the death, severe disability or total or absolute permanent disability of the employee".

Based on the above, the CJEU concludes that article 49.1 e) SW infringes Article 5 of Directive 2000/78, since:

(a) there is no obligation on the employer to take appropriate measures to allow people with disabilities to continue providing services; and

(b) it equates total permanent disability (which disqualifies the employee from his or her usual profession but can engage in a different one) to absolute permanent disability (which disqualifies the worker from any profession), making the employee's disability an automatic termination cause, even though the affected person could carry out another activity.

It is noted that the adoption of appropriate measures cannot create an excessive cost burden on the employer and therefore, in each individual case, the following will be considered: (i) the financial costs involved; (ii) the size, financial resources and volume of business; and (iii) the availability of public funds or economic aids.

Quarantine overlapping with a holiday period does not entitle the employee to postpone his or her holidays

Judgment of the Court of Justice of the European Union in case C- 206/2022 dated 14 December 2023

This case raises the interpretation of article 7 of Directive 2003/88/EC concerning certain aspects of the working time organisation in order to clarify whether or not the period during which an employee is under quarantine ordered by the public authority is an event equivalent to a work incapacity which requires the employer to postpone the date on which the leave must be taken.

The CJEU concludes that the employee does not have the right to postpone the holidays as quarantine differs from sick leave (which would justify postponing the holiday period).

Establishing an age requirement in a job offer for the personal assistance of a disabled person does not violate Directive 2000/78 on equal treatment in employment and occupation

Judgment of the Court of Justice of the European Union in case C- 518/2022 dated 7 December 2023

A preliminary ruling is referred to clarify whether article 2.5 of Directive 2000/78 on equal treatment in employment and occupation is contrary to a national legislation (in this case German) which provides age as a condition for the recruitment of a person to provide personal assistance to people with disabilities.

The CJEU concludes that the different treatment based on age is justified because setting a certain age range is motivated by the disabled person's personal needs (given that he/she will be more familiar with his/her social and cultural environment) and that this allows him/her to determine the selection criteria of the person in charge of his/her care without it being considered discriminatory.

The post-contractual non-competition clause has an indemnity nature, so it is not possible to deduct from the salary an amount to compensate this commitment or to demand the return of what has been paid during the term of the contract in the event of breach of this commitment

Judgment 1163/2023 of the Labour Chamber of the Supreme Court of 14 December 2023

An employee had signed an employment contract with her employer which included a post-contractual non-competition agreement during the year following the termination of the contract, agreeing a monthly salary of 115.73 euros. The contract stated that this amount was part of the salary for all purposes and that had to be reimbursed by the employee in the event of non-compliance.

The Labour Chamber of the Supreme Court ("SC") states that from the post-contractual non-competition clause wording it is clear its salary nature and not its indemnity nature and, therefore, the clause is invalid. Given that there is no financial compensation intended to compensate the post-contractual non-competition obligation individually, an item intended to compensate for the breach of post-contractual non-competition cannot be deducted from the salary.

The dismissal of a pregnant employee does not automatically give rise to compensation for violation of fundamental rights

Judgment 1148/2023 of the Labour Chamber of the Supreme Court of 12 December 2023

In this case, a pregnant woman was dismissed on disciplinary grounds for low productivity without the company being aware at the time of dismissal of her pregnancy. Given the lack of evidence on the dismissal grounds, the dismissal was declared null, but as regards to the right to compensation for violation of fundamental rights, the SC resolves the appeal and clarified that:

(a) the dismissal of a pregnant employee is a case of objective nullity by legal imperative (article 55.5 of the SW); and

(b) compensation for violation of fundamental rights is only possible when it is proven that there is a discriminatory nature. This was not proven in this case because the company was aware of the employee's pregnancy at the time the letter of disciplinary dismissal was issued, which also coincided with those of five other employees.

The company practice of reducing working hours on the 24 and 31 December is considered a most beneficial condition and any change implies a substantial modification of working conditions

Judgment 994/2023 of the Labour Chamber of the Supreme Court of 22 November 2023

It is discussed in this collective procedure whether the unilateral ending by the company of the bank branches practice of bringing forward the end of the working day on 24 and 31 December constitutes a substantial modification of working conditions as it is a more beneficial condition.

The SC declares that the company should have applied for a substantial modification of working conditions, since bringing forward the end of the working day on 24 and 31 December:

(a) has been enjoyed by employees for more than 20 years;

(b) constitutes a general practice in all offices of the company; and

(c) is known and consented by the company. Consequently, its widespread and long-standing nature makes it impossible to consider this practice as a mere tolerance by the bank branch managers.

The number of accrued hours of breastfeeding leave is the same for full-time and part-time workers, but since part-time workers have a shorter working day, they are entitled to a higher number of days of breastfeeding leave

Judgment 986/2023 of the Labour Chamber of the Supreme Court of 21 November 2023

The SC concludes that the formula for quantifying the accumulated working days of this leave is as follows (given that this entitlement must apply equally to all employees who apply for leave, whether they are full-time or part-time):

Number of working days up to 9 months/working day.

The argument put forward by the SC is based on (i) the fact that the provision does not contemplate any distinction for these purposes based on the longer or shorter duration of the working day (the number of hours accumulated is the same regardless of the working day); and (ii) the purpose of the leave is to meet the nutritional needs required to raise a child (which would not justify a differential treatment).

With this calculation method, the number of breastfeeding hours they have to deduct from their working hours is the same as any full-time employee; but these same hours will have to be spread over more working days. This means that part-time employees will have a greater number of accumulated working days.

Illegal assignment of workers despite the existence of a coordinator who went once a month to the principal company's installations if the tasks management, control and organisation came from the main company

Judgment 970/2023 of the Labour Chamber of the Supreme Court of 14 November 2023

This judgment analyses whether there is an unlawful assignment of a camera operator who is formally employed by a company but who, by virtue of a provision of camera services contract, provides services on the offices of the delegation of a radio and television company in Madrid.

The SC considers that there is an illegal transfer of workers given that the subcontracting company:

(a) limits itself to making its employees available to the principal company, which is the one that actually organises, distributes, controls and directs their work (it indicated the places where they had to go, followed the instructions of the principal company's employees to produce the final video) without providing any kind of business infrastructure; and

(b) the existence of a coordinator who paid the employee's expenses and went to the delegation offices once a month and the provision of resources by the subcontracting company are irrelevant elements in the performance of the employee's daily activities.

Personal leave shall be taken in proportion to the time spent in the services

Judgment 969/2023 of the Labour Chamber of the Supreme Court of 14 November 2023

This judgment seeks to determine whether the employees to whom the IV State Collective Bargaining Agreement for external auxiliary services and customer service in railway service companies is applicable and whose contracts were temporarily suspended (temporary furlough), are entitled to enjoy the whole six days of own affairs provided or in proportion to the time spent providing services.

The SC points out that, given the nature of the leave, it must be taken into consideration that some types of leave (such as marriage, death or serious illness of relatives are based on a specific cause with no link to active working time), while personal leave is not based on any cause and therefore, in the absence of a collective bargaining agreement, the proportionality principle must be applied. Moreover, it adds that the fact that the collective bargaining agreement does not apply any differentiation does not affect the above conclusion.