Labor Law News - June 2021

1. >>  The extraordinary modification of the working calendar, vacations, as well as the system of irregular distribution of the day as a consequence of the covid -19 is not a substantial modification of the working conditions ("MSCT"). Judgment of the Supreme Court, Social Chamber, of May 12, 2021, Rec. 164/20.

In order to protect their employees from the Covid-19 health crisis, the company adopted measures such as the temporary replacement of work calendars or the establishment of work shifts (state monopoly) in attention to the exceptional health situation, or the setting of hours of work shifts in the morning and afternoon, among other. The unions also requested the nullity of the measures of irregular distribution of the working day determined by the company by which the workers will accumulate hours in debit, as well as the obligation of the workers to have full availability, both the people who worked in that moment effectively like the rest. 

 The claim was dismissed by the Social Chamber of the Superior Court of Justice of Madrid, in a ruling of June 25, 2020, estimating that there is no substantial modification of the working conditions. On appeal, the appellants consider that the irregular distribution of the day and the alteration of the holidays is within the scope of application of art. 41 ET or, failing that, in that of arts. 82 and 87 ET, as it was a modification of the collective work conditions, which had to follow the procedure provided for it. 

The Chamber considers that the measures adopted by the company since March 11, 2020 are aimed at preserving the life, health and integrity of the workers in the face of a exceptional situation, therefore it concludes that we are not facing an MSCT, nor in the face of a non-application or withdrawal of the collective agreement, but in the face of a variation that is imposed by the exceptional regulations applicable from the state of alarm caused by the covid-19.

2. >>  The right to the protection of personal data acts as a limit to the right to information and documentation of union representatives. Judgment of the Supreme Court, Administrative Litigation Chamber, of February 9, 2021, Rec. 1229/20.


The High Court questions whether it is contrary to the fundamental right to freedom of association to deny representatives, out of respect for the regulations on data protection, information on the list of contracts of all the physicians of each service, with identification of the name, the type of contract and commencement date. 

By weighing the fundamental rights in conflict - the right to freedom of association and the right to protection of personal data - it must be determined whether the regulations on the right to information of the representatives (in this case, the Basic Statute of Public Employees and the Labor Union Freedom Act) is an exception to the requirement of the consent of the owner of the data, since the requested documentation implied a massive dump of data. 

The Court concludes that none of the invoked precepts describes an assumption that exempts the duty to obtain the consent of the interested parties and that; furthermore, the delegates do not need such information to carry out their trade union duties. 

Therefore, the mere invocation, without justification, of union representation cannot serve as an excuse to access all kinds of documentation, if one does not want to empty the content of the fundamental right to data protection in this way.

 
3. >>  Fine to a union for recklessness in a claim for collective dismissal, for extemporaneous formulation, falsification of the facts and obstruction of the jurisdiction. Judgment of the National Court, Social Chamber, of March 31, 2021, Rec. 345/2020.


Faced with the new context of crisis caused by covid-19, with a significant increase in labor unrest, the National Court estimates that the union that filed a lawsuit for collective dismissal alleging the existence of fraud and bad faith in the negotiation on the part of The company, for alleged violation of the right to strike, has obstructed justice, since the falsification of the facts on which the alleged violation are based has been proven. 

In this specific case, the National Court indicates that the lawsuit narrates facts contrary to reality inasmuch as they deliberately omit that the start of the strike was set on February 21, 2020 and that if it did not begin on February 15, 2020 of that month and year, it was not by business decision, but because the organizers realized that the strike affected essential services for the community.  

On the other hand, the claim had been filed extemporaneously since the action to challenge the collective dismissal is subject to an expiration period, which has reinforced the imposition of the fine for recklessness to the plaintiff union.

 
4. >>  The inclusion of workers close to retirement in a labor reserve regime until the termination of their employment contracts is not considered employment discrimination on grounds of age. Sentence of the Court of Justice of the European Union, 3rd Chamber, of April 15, 2021 [Case C-511/19].


The Court of Justice of the European Union has questioned whether a Greek national regulation that includes public sector workers close to retirement and with a full retirement pension in a labor reserve scheme is contrary to Directive 2000/78 / EC until the termination of their employment contracts, a reservation that entailed a reduction in their remuneration, a loss of their possible promotion and a reduction, or even suppression, of the severance pay to which they would be entitled at the time of termination of their employment labor relations.

The context of the national norm is circumscribed in a situation of economic crisis with a legitimate objective of employment policy, and the inclusion of the affected workers in the labor reserve system was accompanied by measures to protect these workers in order to mitigate unfavorable effects. Such protection measures implied (i) the possibility of accessing another job in the private sector or exercising an activity on their own without losing the right to receive the remuneration related to such regime; (ii) the obligation on the part of the public entity employer and, failing this, by the National Employment Institute to pay to the competent insurance entity, until the moment of retirement, the social security contributions of both the employer and the worker; (iii) the exception established to the labor reserve for vulnerable social groups that need protection; (iv) the possibility of transferring these personnel as a priority to other vacant positions in public sector entities, and (v) the adoption of measures for the repayment of real estate loans granted to such personnel.

The European ruling concludes that inclusion in the aforementioned labor reserve does not constitute labor discrimination based on age, given that the context of the national regulation is situated in an economic crisis, the objective of which is legitimate in terms of national employment policy and having been accompanied by protection measures for the affected group.

 
5. >>   Pre-crisis losses caused by covid-19 and aggravated during the pandemic do not justify a collective dismissal. Judgment of the National Court, Social Chamber, of April 20, 2021, Rec. 10/2021.


Within a group of companies, one of its subsidiaries had accumulated losses for more than 10 years and, after the crisis caused by covid-19, its aggravation led it to implement a collective dismissal for economic reasons. 

Even though the ban on firing for objective causes related to covid-19 is in force, there are already judicial pronouncements that support the origin of the dismissal when negative economic or productive circumstances pre-existed to the year 2020. However, in this case, the National Court understands that if the company has not undertaken the collective dismissal for 10 years, the reason that I have led it to execute it now is none other than the Covid-19 crisis and, therefore, by virtue of the prohibition of firing, such dismissals are inadmissible. 

The Chamber bases its qualification on the circumstance that the company was owned 100% by the parent company and, if the parent company had not made any determination about the financial situation of the subsidiary, it could be understood that the group consciously decided that the company should operate “At a loss” for multiple annuities leading up to the pandemic. 

It was proven that it was a group of labor companies, and that the collective dismissal was carried out after a period of ineffective consultations as it had been promoted only by one of them and not by the labor group, so the negotiating commission did not arrive to be properly constituted as the real employer is not part of it, thus lacking any validity. Thus, the decision adopted for the collective dismissal of the entire workforce was declared void, understanding that the real cause of the collective dismissal was not accounting losses but COVID19, and condemning the defendants to jointly and severally reinstate the dismissed workers by paying processing salaries accrued from the date of dismissal until their reinstatement. 

In sum, the assumption of losses for more than 10 years and the declaration as a group of companies for labor purposes have been the determining circumstances that have led the National Court to depart from the doctrinal trend that declares that a negative economic situation prior to the the covid-19 crisis would justify a collective dismissal.

 
6. >>  Consideration as a professional contingency the death by heart attack of a salesperson during the development of remote work. Sentence of the Superior Court of Justice of the Basque Country, Social Chamber, of September 15, 2020, Rec. 809/2020.


While teleworking from home, a salesperson, with obesity and a tendency to suffer from heart disease, suffers a heart attack. For the purposes of the corresponding benefits, the Social Court declared that the contingency was common, that it did not derive from an accident at work. 

However, the Chamber understands that, given that the heart attack took place at the time and place of work, it must be presumed, unless proven otherwise, that the contingency is professional and that the heart attack was a true work accident, despite the worker's risk profile.  

Thus, in this type of procedure, it is vitally important to deploy solid documentary and expert evidence at the trial in order to destroy the legal presumption and remove the causal link from the provision of services.