Legal development

Employment Newsletter June

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    New Legislation

    1. Validation of Royal Decree-Law 2/2024, of May 21, adopting urgent measures for the simplification and improvement of the level of care for unemployment protection

    On June 20, 2024, Royal Decree-Law 2/2024 was validated, agreeing to process it as a draft law under the urgency procedure. As previously mentioned, among other measures, this Royal Decree-Law (i) allows the accumulation of breastfeeding leave without the need for it to be contemplated in the applicable collective bargaining agreement or for an agreement to be reached with the employer, and (ii) gives preference to regional collective bargaining agreements.

    In addition, in relation to unemployment benefit, among other measures, it establishes the compatibility of unemployment benefit or allowance with employment for a maximum period of 6 months.

    Case Law

    1. FOGASA is not liable for indemnities that are different from the legal ones and that result from private agreements

    Judgment 894/2024, from the Supreme Court, Social Chamber, dated June 6, 2024

    The Supreme Court ("SC") resolves a case in which the right to compensation for the termination of the contract of an employee on voluntary leave with job reservation agreed upon by the parties when the company entered into insolvency proceedings.

    FOGASA denies compensation to the employee for being on voluntary leave, and the employee argues that they should be responsible for the compensation because their voluntary leave had improved conditions that equated it to forced leave (job reservation).

    The SC rules that FOGASA is only liable for legal compensations, and not for those derived from agreements between the parties that do not have the status of a collective bargaining agreement.

    2. Nullity of evidence obtained through the search of personal belongings without the presence of employee legal representatives or another employee

    Judgment 874/2024, from the Supreme Court, Social Chamber, dated June 5, 2024

    In this case, an employee who was under a reduced working hours was searched by a security guard because, upon leaving her workplace, she triggered the anti-theft alarm. Unpaid products were found in her bag, leading to her dismissal.

    The SC concludes that the search of the bag lacks probative value since the presence of an employee legal representative or another employee during the search is a guarantee of the objectivity and effectiveness of the evidence. Since this guarantee was not fulfilled, the dismissal lacks cause, and due to the employee being under a reduced working schedule for the care of a minor child, the dismissal was declared null and void.

    3. A heart attack in the workplace's changing rooms is not considered a work related accident

    Judgment 724/2024, from the Supreme Court, Social Chamber, May 22, 2024

    A cassation appeal for the unification of doctrine is resolved, questioning whether a heart attack (and subsequent death) in the workplace's changing rooms before clocking in and starting the workday should be considered a work related accident.

    The SC considers that this is not a work related accident because:

    (a) The fact that the heart attack occurred when the employee was in the changing rooms (at the workplace) is not sufficient for the presumption of employment-relatedness to apply (as per article 156.3 General Social Security Law).

    (b) The concept of "working time" also requires a temporal element, that the employee is at their workplace, that is, that they have started to perform some type of activity or effort (physical or intellectual) that allows the accident or illness to be linked to work. The worker was in the workplace's changing rooms before starting their work shift (and without having clocked in).

    (c) There is no link between the heart attack episode and the work the employee was performing (despite having a cardiomyopathy in the health examination conducted that same year by the prevention service, the employee was classified as fit).

    4. Failure to comply with the one-month deadline to request reinstatement after voluntary leave does not justify the termination of the employment contract

    Judgment 726/2024, from the Supreme Court, Social Chamber, May 22, 2024

    It is questioned whether the failure to comply with the one-month notice period required by the collective bargaining agreement for reinstatement after voluntary leave justifies the loss of the right to reinstatement and, consequently, the termination of the employment contract of an employee.

    The SC declares the dismissal as unfair because although the collective bargaining agreement may establish a deadline to request reinstatement and the relevant consequences of its non-compliance, these consequences can never be of such magnitude as to imply the loss of the right, as it would be imposing effects through the agreement that the law has not foreseen.

    5. Validity of a post-contractual non-compete clause agreed in the employment contract despite not being included in the job offer

    Judgment 556/2024, from the Supreme Court, Social Chamber, April 17, 2024

    A company issues a binding job offer that does not include any post-contractual non-competition agreement. The employee accepts the offer and signs an employment contract with the company, which includes a new clause for post-contractual non-compete and agrees to its financial compensation.

    After the voluntary departure of the employee, the employee joins a competing company, and the former employer claims the payment of the non-compete compensation received during the 7 years of the contract.

    The SC declares the validity of the clause because there are no elements to prove the existence of a defect in consent due to the discrepancy between the job offer and the signed contract, as the employee has been regularly receiving the corresponding financial compensation for more than 7 years without objecting to it.

    6. Validity of the remote work regime and a digital disconnection policy unilaterally implemented by the company

    Judgment 53/2024, of the National Court, Social Chamber, of May 6 2024

    The ASC trade union files a lawsuit for violation of the right to freedom of association, alleging that the implementation of the "Smart Job" voluntary adherence policy and the digital disconnection policy should have been the subject of prior collective bargaining (article 88 of the Organic Law on Data Protection and Digital Rights) and not simply informed to the works council for the issuance of the mandatory report.

    The National Court ("NC") dismisses the violation of the aforementioned right because:

    (a) even though the remote work agreement is an adhesion contract (unilaterally established by the company and offered to the worker), it is not per se null;

    (b) even if individual agreements have been signed en masse that alter what is agreed in the applicable collective bargaining agreement, the violation of the right only occurs with respect to the trade unions that sign the agreement or are called to participate in the negotiation (which was not the case); and

    (c) regarding digital disconnection, it has been proven that prior to the unilateral elaboration of the digital disconnection policy, prior hearing was given to the legal representatives.

    7. Compliance with the provisions of art. 7 of ILO Convention 158 is met with the prior notification of the disciplinary dismissal to the employee legal representatives

    Judgment 922/2024 of the High Court of Justice of Andalusia, Social Chamber, of April 25, 2024

    An employee is dismissed for disciplinary reasons while on reduced working hours, and the nullity and, subsidiarily, the unfairness of the dismissal are requested due to the omission of the prior hearing procedure under article 7 of ILO Convention 158, arguing defencelessness. It should be noted that the aforementioned article 7 provides that: "the employment relationship of an employee shall not be terminated for reasons related to his conduct or performance before he has been given an opportunity to defend himself against the charges made against him": In this case, it is proven in the established facts that the dismissal was communicated to the employee's representatives.

    The High Court of Justice ("HCJ") of Andalusia clarifies that since the employee's representatives were notified of the disciplinary dismissal in accordance with article 64.4.c) of the Workers' Statute, and the Works Council has the function of "defending the interests of all employees in the company" (article 63.1 of the Workers' Statute), there is no defencelessness.

    8. Fairness of the disciplinary dismissal of an employee on sick leave when the company proves through their social media posts that he/she was engaging in activities compatible with their work

    Judgment 1022/2024, of the High Court of Justice of the Valencian Community, Social Chamber, of April 11, 2024

    An administrative employee on sick leave maintained an active Instagram account where she advertised as a nutritional coach, showing an active life incompatible with her sick leave.

    The HCJ of the Valencian Community declares the dismissal fair, as her activity on social media showed that she could perform their administrative work, which contradicts her sick leave. Therefore, disloyalty and abuse of trust towards their employer, punishable by disciplinary dismissal, are evident.

    9. Unfairness of dismissal for notifying it via email to an email address whose ownership is not proven

    Judgment 2096/2024, of the High Court of Justice of Catalonia, Social Chamber, of April 10, 2024

    After a medical examination upon returning from sick leave, an employee was declared unfit due to various medical conditions. The company dismisses the employee for supervening ineptitude by email.

    Signaturit Solutions S.L. (a certification and electronic signature service) certified that the email was sent and the employee challenges the dismissal for unsuccessful notification. The HCJ of Catalonia declares the dismissal unfair because:

    (a) the company did not prove that the owner of the email address was the employee, or that she opened the email;

    (b) it was not proven that she had given her consent to receive communications through her email address to which the dismissal letter was sent, and it was proven that another employee from the personnel department had sent a communication to a different email address.

    10. Rejection of additional compensation to the legally assessed one for the lack of evidence of additional damages

    Judgment 2058/2024, of the High Court of Justice of Catalonia, Social Chamber, of April 8, 2024

    This judgment analyses whether the legally assessed compensation of approximately 3,000 euros is considered meagre and whether it is appropriate to pay additional compensation under article 10 of ILO Convention 158 and article 24 of the European Social Charter.

    The HCJ of Catalonia points out that for the recognition of a complementary compensation, there must be a clear and evident illegality, legal fraud, or abuse of rights in the company's decision to terminate the employment, and also that the corresponding compensation for dismissal is meagre and does not have a dissuasive effect on the company. However, the HCJ of Catalonia rejects this complementary compensation because although the referred amount may seem meagre, the existence of damage or harm is not proven to justify the right to additional compensation.

    To keep an eye on

    1. Agreement on the regulation for equality and non-discrimination of LGTBI+ people in the workplace. Pending approval by the Council of Ministers

    On June 26, 2024, an agreement was signed within the framework of social dialogue between the Ministry of Labor and the social partners to develop regulations for equality and non-discrimination of LGTBI+ people.

    Although we will have to wait for approval by the Council of Ministers and publication in the Official State Gazette of the regulatory development, the following measures are included (to be collectively negotiated): (i) clauses for equal treatment and non-discrimination of LGTBI+ people; (ii) measures to eradicate stereotypes in the employment access of LGTBI+ people; (iii) specific training modules on the rights of LGTBI+ people; (iv) attention to the reality of diverse families, spouses, and LGTBI+ domestic partners in terms of permits, social benefits, and rights; and (v) the inclusion of offenses and sanctions for behaviours that violate sexual freedom, sexual orientation and identity, and gender expression.

    2. Push for negotiations to approve the reduction of working hours before the summer period

    Due to the lack of agreement between the Unions and Employers' Association on the reduction of the weekly working hours, the Ministry of Labor has agreed to create a tripartite social dialogue table that will meet weekly to try to reach an agreement and reduce the working hours to 38.5 hours per week before the end of the summer period and to 37.5 hours from January 1, 2025.

    Within the negotiations, other additional issues are being addressed, such as (i) with the reduction of working hours, the proportional increase in salary will be applied to workers with part-time or reduced hours; (ii) the requirement for digital and remote access registration for the Labor Inspection; and (iii) the increase in fines to 10,000 euros per worker for companies that fail to comply with the hourly record.

    3. Management criterion 11/2024 of the National Institute of Social Security: incompatibility of the permanent absolute disability pension (PAD) with the performance of work for others or self-employment

    In light of the judgment of the Supreme Court number 544/2024 of April 11, 2024 (which states that if there is no loss of wage income because the incapacitating situation does not imply the inability to work, there is no specific need for protection and consequently, the right to the benefit does not arise), on June 13, 2024, the NISS issued the criterion which states:

    (a) The receipt of the PAD pension will be incompatible with the performance of any work or activity that leads to inclusion in the Social Security system (in general terms, carrying out an activity receiving at least the minimum interprofessional wage), exclusively suspending the payment of the benefit; and

    (b) Compatibility will be maintained in cases prior to the new doctrine of the Supreme Court during the validity of said employment contracts or activities.


    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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