Labor Law Department Newsletter - December 21, 2021

HOLIDAYS

The payment of annual leave of an employee in a situation of temporary disability cannot be lower than that which he would have received if he had been providing services. Judgment of the Court of Justice of the European Union, Sala Segunda, of December 9, 2021, Case C 217/20.
 
The High Court has considered that situations of temporary incapacity due to illness cannot adversely affect the right to at least four weeks of paid annual leave, as otherwise it would be in breach of the Directive. 2003/88/EC. 

It thus confirms that the right to four weeks of paid annual leave, set forth in Article 7 of the Directive, translates in practice into the fact that no situation of illness can have repercussions on the employee's economic conditions, guaranteeing that all the salary concepts that he would have received if, instead of being in a period of sick leave, he had actually worked will be paid.

REMOTEWORK “Covid”

The reincorporation to the workplace after the pandemic can be decided unilaterally by the company. Judgment of the Supreme Court, Sala de lo Social, October 20, 2021, Rec. 93/2021.

After the declaration of the state of alarm, the Company allowed its employees to work remotely from home. In May 2020, the company communicated the decision to return to providing services in person and the union refuted the measure on the grounds that, having been imposed unilaterally and without negotiation with the employee’s representatives, it violated their right to freedom of association. 

The High Court determined that the decision to return to providing services from the workplace is part of the management and organization of the company, since there is no rule requiring negotiation, so that its non-negotiated imposition does not violate freedom of association.

LAWSUITS ARISING FROM DISMISSALS

Relevant doctrinal change: In collective dismissals concluded with agreement, employees may dispute the existence of the causes in the dismissal trials. Judgment of the National Audience, Sala de lo Social, of September 15, 2021, Rec. 77/2021.

Until now, it was understood that the conclusion of the consultation period of a collective dismissal with an agreement provided the possibility for the employees to challenge the existence of the causes in the subsequent individual challenges to the dismissal, unless fraud, fraudulent intent, coercion or abuse of rights could be appreciated in obtaining the agreement. Thus, these dismissal lawsuits were limited, in the vast majority of cases, to discussing the validity and correct application of the selection criteria. However, the Court has made a radical change by declaring that the existence of an agreement does not preclude the judicial questioning of the existence and validity of the causes of the collective dismissal. We will have to wait for the Supreme Court to rule on this matter.

 

RIGH TO DISCONNECT

The right to digital disconnection is compatible with the employer's right to impose the performance of work activities outside normal working hours. Judgment of the Superior Court of Justice of Madrid of June 9, 2021, Rec. 318/2021.

The company measure consisted of imposing on the employee the mandatory completion of a two-hour online training course, outside his working hours.

The SCJ of Madrid declares that the right to digital disconnection is not affected and, therefore, neither does it affect personal and family privacy, the fact that the Company orders the performance of actual work outside working time, since the course is considered working time, is paid at the same hourly rate and is taken into account in the computation of hours with respect to the maximum annual working day. Thus, since the course is considered working time, there would be no right to digital disconnection during the course, but only during rest time.

NEGOTIATING COMMITTEE VS. INSURANCE COMMITTEE

An Equality Plan negotiated by the previous Monitoring Committee instead of by the new Negotiating Committee is declared null and void. Judgment of the Supreme Court of May 25, Rec. 186/2019.

After the successful negotiation of the equality plan, in order to evaluate it and monitor the measures adopted, a Follow-up Commission was created. At the end of the Plan's term, instead of restarting the procedures to set up a new negotiating committee with negotiating legitimacy, the new plan was approved by the Follow-up Committee, whose members did not have the necessary negotiating legitimacy.

The High Court recalls that the Monitoring Committee is entrusted with the administration and application of the Plan during its term, but is not authorized to negotiate, nor to extend its term, nor to extend its functional scope to groups not represented during its initial negotiation, nor to renew and expand its composition.

OCCUPATIONAL DISEASE

The responsibility in the payment of benefits derived from occupational disease, when there has been more than one insurer over time, must be shared in proportion to the time of exposure of the employee to the risk. Judgment of the Supreme Court of July 20, 2021, Rec. 4540/2018.

An employee was diagnosed with the occupational disease of bilateral hypoacusis (deafness), as a consequence of having been exposed to noise for 12 years. During the first 5 years, the employer company had the occupational contingencies covered by the INSS and during the following 7 years by the FREMAP mutual insurance company.

The judgment states that the occupational disease, unlike an accident at work, although it is externalized at a given moment, has been developing over time in a silent and insidious manner, due to the employee's exposure to certain substances, elements or working conditions, which prevents it from being established that the responsible entity is the insurer in force at the time when the disease manifests itself. Thus, INSS and FREMAP will respond in proportion to the time of exposure, i.e. 5 and 7 years respectively.