Labor Law News - April 2021

1. >> The equality plan must be negotiated with the legitimate representation and not by an "ad hoc" commission. Judgment of the Supreme Court, Labor Chamber, of January 26, 2021, Rec. 50/2020.


The Civil Division is questioned if an equality plan that has been negotiated (i) prior to the approval of RD 901/2020, of October 13 is null and void, which approves the regulation on equality plans, (ii) through an ad hoc commission and (iii) attended, once negotiated, by the already existing works council.
 
Since the company signed the Equality Plan with a commission of five employees, appointed by the company itself, this commission cannot even be considered an ad hoc commission, since the commissions, regulated in the Workers' Statute itself, They must be chosen by the employees of the centers without representation, which does not happen in this case, so it rules out, in advance, that we are in light of a negotiating process as such.
 
The High Court understands that RD 901/2020 itself resolves that such plans must adapt to the new legal framework, regardless of the type in which they may be included (voluntary or mandatory, negotiated or unilateral ...), having a deadline for this. (Three months to constitute the negotiating committee and another twelve to reach the agreement) from its entry into force (January 14, 2021).
 
This implies that neither the diagnosis that had been made previously nor, much less, the planning in which the equality plan consists will be valid, even though both could have been negotiated within the channels provided for collective bargaining.


2. >> The working conditions of a hotel chambermaid must be governed by the contract of the contractor company, not by the one of the main company. Judgment of the Supreme Court, Labor Chamber, of February 12, Rec. 2839/2019.

The legal debate focuses on determining which is the applicable collective agreement to set the professional category and the salary that should be taken as the basis for calculating the processing salaries in a void dismissal of a chambermaid from a contractor company that provides services for a hotel. It is debated whether it should be the cleaning agreement or the hotel contracts, both at the provincial level.

In the case under discussion, the activity contracted with the hotel chain was the room cleaning service. This activity, which was outsourced, meant that the workers of the contractor company did not have the same remuneration conditions as those received by the direct employees of the hotel company.

The Civil Division understands that the provincial collective agreement for the cleaning of buildings and premises in the province of Seville must be applied to the contracted personnel and not the hospitality sector one, since the recurring company does not carry out accommodation or lodging activities for clients Instead, it is dedicated to the outsourced management of what, in establishments that do so with their own staff, is called the housekeeping department.

The judgment had a Particular Vote when considering discriminatory that the salary conditions of the dismissed worker are governed by the collective cleaning agreement, as it is contrary to the principle of effective equality that our legal system establishes and for leading the outsourced group to the precariousness of the working conditions, called social dumping.
 

3. >> Non-existence of a defect in the consent for inviting a worker to sign his voluntary resignation due to possible breaches committed by him. Judgment of the Supreme Court, Labor Chamber, of January 20, 2021, Rec. 2093/2018.


In the case under discussion, the Chamber considers that the fact that a worker is made aware of the existence of serious events that could entail a series of legal, labor and criminal consequences, giving him the opportunity to opt for dismissal to avoid the Adoption of the corresponding measures does not mean in any way that the company exerts coercion on him.

Thus, the High Court understands that for the conduct of the company prior to the decision-making to be classified as a threat or intimidation included in article 1267 of the Civil Code, it is necessary for the same journal to have an unlawful or illicit nuance, and there is no such when what is done is to announce the possible correct and non-abusive exercise of a right, such as the one related to a possible disciplinary dismissal and the filing of a complaint.
 
The judgment concludes that the warning by the company of these acts, while this warning and the methodology used to carry it out could generate situations of tension, it cannot be classified as a cause that curtails the free will of the other party, which can understand the facts and deny or accept their consequences.
 

4. >> Computer monitoring in the workplace: has it resulted in compensation for violation of fundamental rights before the dismissal is classified as inadmissible and not null? Judgment of the Constitutional Court of March 29, 2021, Rec. 6838/2019.

The company implemented a protocol for monitoring the computer equipment of a female worker, within a disciplinary procedure, in order to verify how she used her working day, concluding that 70% of her working day was spent on issues outside the company, for what was fired.

The Social Court No. 19 of Madrid declared the dismissal null and void when it found that the fundamental rights to privacy and secrecy of communications had been violated, condemning the company to pay compensation. On the other hand, on appeal, the Superior Court of Justice of Madrid, although confirming that the evidence obtained by the appellant company with the monitoring of the computer was illegal because it was obtained in violation of fundamental rights, qualifies the dismissal as inadmissible and not null, reason for which he refuses to rule on compensation for the damage to fundamental rights.

By appealing for protection of civil liberties, the Constitutional Court confirms that the dismissal is inadmissible, given that the illegality of the evidence does not have a direct correlation with the nullity of the dismissal.

On the other hand, the Constitutional Court concludes that the plea judgment has violated the appellant's right to effective judicial protection, by refusing to rule on compensation for the violation of fundamental rights. It thus understands that the aforementioned sentence incurs an inconsistency that cannot be saved with the reference to the fact that the violation was not caused by the dismissal. The aforementioned inconsistency consists of the existence of a violation of the rights to privacy and the secrecy of communications and the failure to pronounce on compensation for violation of rights, regardless of the classification of the dismissal.
 

5. >> The right of access to information by union representation, can it exceed the limits set by the Data Protection Legislation? Judgment of the Supreme Court, Contentious-Administrative Chamber, of February 9, 2021, Rec. 1229/2020.

 
The fundamental right to data protection (art. 18.4 Spanish Constitution) and its protection in the legal framework of labor relations is an aspect that has acquired considerable importance in recent years, and this due to its possible confrontation with other fundamental rights; in this case, freedom of association (art. 28.1) and the right of access to information regarding the rest of the workers.
 
In this case, the Supreme Court declared the denial by the Galician Health Service of the information requested by the union representation, regarding statutory appointments of all physicians by service, type and date of commencement of service provision, in accordance with Law, including in that registry both the appointments for "accumulation of tasks" and the "substitutions" and other "non-structural" positions, and this due to the fact that the request by the representation did not prove the need or the usefulness of having this information for the development of their functions.
 
By way of conclusion, access to information by union representation must, in any case, be carried out respecting the limits set by the Data Protection Legislation.
 

6. >> What is the date of economic effects in determining the contingency of temporary disability? Judgment of the Supreme Court, Labor Chamber, of January 13, 2021, Rec. 2245/2019.

 

The plaintiff worker, being in a process of temporary disability caused by an acute myocardial infarction while working, challenges the administrative resolution because he understands that the contingency derives from an occupational accident, not from a common disease.

Both in the first instance and in appeal, the plaintiff's claim is upheld, which is why the Mutua  proceeds to appeal to the Supreme Court, although the issue to be resolved by the High Court is not the qualification of the contingency, but the determination of the date of economic effects in the determination of such professional contingency: must it be the date of the beginning of the causal event (claim of the worker) or must it be limited to the 3 months prior to the presentation of the request for determination of the contingency (claim of the Mutua)?
 
The Supreme Court concludes that the economic effects derived from the recognition of such benefit are limited to the 3 months prior to the date of the application, taking into account that the worker made the request for the qualification of his ailment after the period of 3 months from the causal event and that collaborated with the determination of the contingency.
 
The Civil Division recalls its previous jurisprudence that resolves that the rule of art. 53.1 of the LGSS, which, in general, limits the economic effects of social security benefits to the three months prior to the application date, do not apply to IT provision.
 
However, when what is discussed is the qualification of the ailment from which the IT derives, as is the case at hand, the worker must submit a request for a contingency determination, so the rule of art. 53.1 of the LGSS. Thus, as we said, the economic effects derived from the recognition of such benefit are limited to the 3 months prior to the date of the application.