Employment Spain Newsletter
Legislative News
1. Royal Decree-Law 1/2025, of January 28, approving urgent measures in economic, transportation and social security matters, and to address situations of vulnerability
On January 22, 2025, the Plenary of the Congress of Deputies adopted the decision to not validate the Royal Decree-Law 9/2024, of December 23, adopting urgent economic, tax, transportation and Social Security measures (hereinafter "RD 9/2024").
As a result, the Government has decreed this new Royal Decree-Law 1/2025 (hereinafter, "RD 1/2025") to try to carry out the social measures that were included in the Royal Decree of December 23 which had declined as it had not been validated.
Among others: (i) the enhancement of the worth of pensions and other benefits in the year 2025 by 2.8%; (ii) the increase of the minimum social security base (by one sixth) and the maximum (by an additional 1.2%) until the General State Budget Law is approved; (iii) setting the Intergenerational Equity Mechanism at 0.8% (0.67% to be paid by the company and 0.13% to be paid by the worker); (iv) the application of the new solidarity quota with effect from January 1, 2025 and (v) that companies receiving direct public aid are not be able to justify dismissals due to the increase in energy costs or for reasons related to the invasion of Ukraine, if they take advantage of measures for the reduction of working hours or suspension of contracts with public support.
RD 1/2025 has not yet been validated since the necessary parliamentary session to bring to a date this procedure has not yet been held.
2. Interpretative Criteria 1/2025, on the consequences of the non-validation of the Royal Decree 145/2024, of February 6, establishing the Minimum Interprofessional Wage for 2024
Although it is not a legislative rule, it is relevant to note that as a consequence of the non-validation of the extension of the 2024 Minimum Interprofessional Wage (hereinafter, "MIW") to 2025, the General Directorate of Employment published on January 23, 2024, an interpretative criteria that includes the following key points: (i) that the non-validation of the extension cannot affect contracts which already are in force; (ii) that the MIW of 2024 is to continue to be taken as the minimum wage reference for new hires, substantial modifications of working conditions (hereinafter, "SMWC") or collective bargaining agreements opt-outs; and (iii) that the MIW for 2025 will project its effects retroactively from January 1, 2025.
Judgements
1. Validity of the absenteeism supplement if it does not take into account absences due to childcare/care of relatives or illness
Ruling 40/2025, Supreme Court, Social Division, January 20, 2025
The Social Division of the Supreme Court (hereinafter, "SC") annulled a ruling that had eliminated all types of absences as a criterion for having the right to receive an absenteeism supplement which was provided for in the applicable collective agreement. This caused that, according to the new wording of the article of the applicable collective bargaining agreement, the accrual of the supplement was not linked to any type of absence. The main reason for the SC's decision is that the above-mentioned salary supplement was intended to combat absenteeism. Therefore, it is valid to consider for its calculation unjustified absences or absences that are not linked to discriminatory causes (e.g., illness, childcare leave, etc.).
Otherwise, the supplement would be emptied of its motivation and would go from being a productivity, quality and attendance supplement to being just a productivity and quality supplement.
2. Nullity of retaliatory dismissal when the disciplinary dismissal is based on the disobedience of instructions contrary to the health and safety of the employee
Ruling 1359/2024, of the Supreme Court, Social Division, of December 20, 2024
The SC declares null and void a dismissal for violation of the guarantee of indemnity that was initially declared unfair by the High Court of Justice of Extremadura (hereinafter, the "HJC").
The SC considers that: (i) the worker provided sufficient evidence to prove that the dismissal was a retaliation, due to the temporal connection between his complaints, both internal and external before the Labour Inspectorate (having elapsed approximately 3 months from his first complaint and the dismissal); (ii) the cause of the disciplinary dismissal brought forward by the company (disobedience), was contrary to law and against the worker's right to health and safety, since it implied an accumulated excess of daily working hours; (iii) this disobedience was the cause of his dismissal, since a disciplinary file was opened as a result of it; and (iv) the company could not prove that the dismissal was not due to retaliation.
3. Non-existence of a collective dismissal in a dismissal of 8 workers of a work center when the activity does not cease in other work centers
Ruling 1367/2024, of the Supreme Court, Social Division, of December 20, 2024
Without prejudice to the right of workers to file individual lawsuits, the SC confirms the lack of jurisdiction of the HJC of Madrid to judge a collective dismissal lawsuit.
The SC clarifies that a collective dismissal will be considered to exist when the entire workforce of the company is terminated (if it is more than 5 workers) as a consequence of the total cessation of the business activity.
Even though the work center must be taken into account for the purposes of calculating the thresholds for a collective dismissal, the SC considers that the dismissed workers did not constitute the entire workforce and that there was not there a total cessation of the business activity, since it is a proven fact that the defendant company was still registered with the Social Security and had several other workers registered. Consequently, once the claim for collective dismissal has been dismissed, the terminations must be challenged through individual proceedings.
4. A SMWC cannot be covered by a regulatory change whose entry into force is subsequent to the change
Ruling 1342/2024, of the Supreme Court, Social Chamber, of December 11, 2024
The SC resolved a case in which there was a substitution of salary concepts linked to going to the work center (meal subsidy, meals in kind and transportation supplement) for concepts associated with the provision of telecommuting, and there was also a reduction in compensation for telecommuting lower than the one which had been applied in the past.
The company claimed that an SMWC had not taken place because the changes had been introduced because of Law 10/2021, on remote working. However, the SC considers that: (i) the reason referring to the violation of the first transitory provision of Law 10/2021 on remote working (which maintained the more beneficial conditions enjoyed by workers who provided services remotely before the entry into force of the law) is not applicable because the measure in question was applied before the law came into force and is the result of a business decision on its own part and (ii) the one referring to the third transitional provision of said law, which provides that companies will have to provide the necessary means to provide the service remotely, is not applicable either because it is considered that they had already been provided.
Finally, the SC concludes regarding the substance of the case that it could be considered a SMWC, but finally dismisses the submitted appeals on the grounds that the action has expired.
5. Automatic nullity of the dismissal of a worker in a specially protected situation due to the expiration of misconduct
Ruling 1310/2024, of the Supreme Court, Social Division, of December 3, 2024
The SC analyses whether a worker who enjoys a reduced working hours scheme who is dismissed for disciplinary reasons must be declared null and void when the time frame to sanction such misconduct has expired.
The SC concludes that it does because the protection of Article 55.5 of the Royal Legislative Decree 2/2015, of October 23, which approves the revised text of the Workers' Statute Law, (hereinafter, "WS") contains a special protection. Specifically, said article establishes that, if the alleged causes do not exist because the time frame to sanction them has expired, the dismissal cannot be declared unfair, but rather the dismissal must be qualified as null and void.
6. The elimination of the possibility of deferring payment of corporate products through payroll deduction does not constitute a SMWC
Ruling 1300/2024, of the Supreme Court, Social Chamber of November 21, 2024
It is discussed whether the elimination of the option for employees to defer the payment of purchases made at the company's shop through a payroll deduction represents a SMWC.
The SC considers that this is not a SMWC due to the following reasons: (i) the business decision was motivated by the need to simplify payrolls (eliminating concepts that did not retribute rendered services); (ii) the right of workers to make these purchases at a discount was maintained, allowing them to pay for purchases either by credit or debit card or in cash; (iii) the change does not transform or alter fundamental aspects of the employment relationship and (iv) no prejudice was caused to the workers as the said change did not involve a quantitative change (ranging between 8 and 24 euros per worker).
7. Right to accumulate union time credit for workers' representatives from any workplace, even if they do not belong to the same workplace or the same works council
Ruling 1301/2024, of the Supreme Court, Social Chamber of November 21, 2024
It is debated whether the company's conduct of interpreting the company´s collective bargaining agreement to deny the accumulation of union credit hours to the different union representatives who do not belong to the same works council is contrary to freedom of association.
The SC concluded that the company's interpretation of the contractual provision was excessively restrictive. Following a literal and systematic analysis of the aforementioned provision, it considered that the will of the parties was not to limit the accumulation of credit among the members of the same works council or of the inter-centre works committee. Moreover, since it is a fundamental right, it cannot be interpreted restrictively. The sentence confirms that the company must compensate the claimants with 6,000 euros to the company for violation of the fundamental right to freedom of association.
8. Entitlement to an increased extension of the childbirth and childcare leave and its linked allowance for single-parent families
Ruling 12/2025, of the High Court of Justice of Murcia, Social Chamber, of January 9, 2025
The Constitutional Court, in its decision 140/2024 of November 6, 2024, ruled that it is discriminatory for children born into a single-parent family if their parents only receive the childbirth and childcare leave, and the allowance linked to it allowance for just 16 weeks. As a result of this discrimination, the right for the leave and the allowance was increased to 26 weeks (which implies adding the 10 weeks corresponding to the non-mandatory weeks after childbirth).
On the other hand, the HCJ of Murcia has gone one step further and instead of recognising the single-parent families right to 26 weeks of leave and childbirth allowance, it adds the mandatory additional 6 weeks to be enjoyed by the other parent after the birth. Thus, the right to benefits is recognised for a total of 32 weeks (sum of the benefits of both parents).
9. The refusal to adapt the working day for childcare cannot be based exclusively on the availability of the other parent
Ruling 6688/2024, of the High Court of Justice of Catalonia, Social Division, of December 2, 2024
The HJC of Catalonia recognises the right of a worker to adapt his working hours (e.x. Art. 34.8 WS) in the fixed morning shift from 8 a.m. to 4 p.m.) given that (i) the company had not proven any organisational and/or productive business difficulty that would justify its refusal; and (ii) the reason for the company's refusal was based on the availability of the other parent, (the company had allowed him to specify his working day only on one day, alleging that the mother of his children could take care of the other days). The HJC deems the decision inadmissible since it perpetuates gender roles.
In this case, the right to compensation for damages in the amount of 3,751 euros was recognized, based on the damage that had been caused to the employee during the months in which he was unable to enjoy his defined working day during 4 out of the 5 requested days.
To keep on the radar
Approval of the Preliminary Bill for the reduction of the working day
With its approval in the first round by the Council of Ministers of the Preliminary Bill for the reduction of the maximum duration of the ordinary working day, its processing - by way of urgency - is set in motion. If approved by both the Congress of Deputies and the Senate, will mean the reduction of the maximum ordinary working day to thirty-seven and a half hours per week of effective work on an average annual basis.
The Preliminary Bill also contains certain complementary measures such as the precise regulation of the working day registry for which it will require: (i) the use of digital means; (ii) personal and direct completion with guarantees of authenticity and traceability; (iii) the use of comprehensible formats; (iv) the establishment of documentary obligations and immediate accessibility and interoperability; and (v) an identical working day registry in part-time contracts.
The text of the Preliminary Bill, which is still being prepared by the government, will be made public in the next few days, while it is sent to the different consultative bodies so they can be informed or issue an opinion. Once said procedures have been completed, it will go through the Council of Ministers again for its approval as a preliminary bill and will be referred to Congress to be subject to approval in the Congress of Deputies and the Senate.
The consequences of the qualification of the Preliminary Bill as an urgent procedure are: (i) all deadlines are reduced by half, (ii) the Government will enjoy a wide margin of discretion to decide, once the mandatory procedures have been completed, when to send it to the Congress of Deputies and the Senate.
