Labor Law News – May 2021

1.>> Non-concurrence of force majeure (it should have been redirected to ETOP) in the ERTE of a cleaning contractor company, given that the main company was an essential service (optical) and the reduction of the contract is a consequence of the total closure of all establishments by voluntary decision. Judgment of the National Court February 23, 2021 Rec. 463/2020.

A case is prosecuted in which the Labor Authority rejects the request for ERTE by way of article 22 of Royal Decree-Law 8/2020 after having verified the absence of force majeure (FM) for not having sufficiently proven the temporary impossibility of continue business activity, as loss of customer base, unfavorable expectations, drop in orders, or other similar reasons could justify an economic, technical, organizational or production (ETOP) cause, but not FM. 

They are determining circumstances for the failure that the client (main company), automatically and unilaterally, proceeds to close each and every one of its establishments open to the public, therefore, being an essential service (Optical), it could have been valued maintaining part of the establishments and, if there is an ETOP cause, redirect the ERTE to the appropriate procedure. 

This judgment could contradict the judicial doctrine followed by other Courts in extrapolated cases. By way of example, the STSJ Madrid December 18, 2020 declared the existence of FM for the cleaning contractor company of a hotel in which, even with the possibility of remaining open as an essential service, there is a total cancellation of the service due to the conversion of it into a health facility, thus confirming the FM.

As a consequence of the foregoing, the criterion followed by the competent Labor Authority was confirmed, preventing the contractor company from placing the affected workforce in a situation of contract suspension with the advantages offered by the ERTE regulation due to force majeure. 
Therefore, in view of the pronouncements, it is essential to analyze whether the reduction of the contract's activity (cleaning, security, maintenance, etc.) is due to a unilateral decision of the main company (ETOP causes) or we are facing a FM whose exceptional requirements must be met, are not presumed.

2. >> The times in which a VTC is offline or without circulation should be considered working time. Judgment of the Social Court 42 of Madrid of December 11, 2020, Judicial Decree 1079/2019. 

In recent years there has been a proliferation of judicial decisions in which our courts rule on new forms of service provision as a result of the use of new technologies in the development of the service. 

Through this judgment, the judge corrects the content of the collective bargaining agreement that provided that the waiting times in which the driver, without performing any effective service, would be at the disposal of the company, would not be counted as working hours, whenever considered abusive and contrary to the minimum right on working time. 

The judge explains that it is convenient to correctly differentiate effective working time and waiting time because, although there are differences between them, both times must be computed for the purposes of determining the worker's full day, departing from the argument defended by the company, which tried to exclude from the computation both the waiting times in which the worker is offline, as well as those in which, while connected, the vehicle was not circulating. 

Currently there are multiplicities of collective bargaining agreements that regulate the matter (working hours, car trips) in a similar way and that could, in the future, question the legality of what is regulated in it.  

3. >> The implementation of teleworking for COVID reasons does not enable to establish a continuous day or to eliminate meal vouchers. Judgment of the National High Court of March 18, 2021, Rec. 164/2020.  

Due to the exceptional situation of the health crisis caused by COVID-19 and the isolation decreed since March, the Company tries to negotiate by means of the substantial modification of collective working conditions (which ended without agreement) a series of measures: (i) continue with the teleworking situation, (ii) that the provision of services be carried out on a continuous shift and, as a consequence, (iii) eliminate the meal vouchers included in the Agreement and that workers with split hours received.  

The Chamber declares that the only measure in accordance with the Law was the introduction of teleworking, thus rejecting: (i) the concentration of the working day from 8:00 a.m. to 4:00 p.m. in an uninterrupted manner, since it implies a violation of article 34 ET, (ii) as well as the suppression of meal vouchers, understanding that we are facing a breach of the provisions of the Collective Bargaining Agreement that cannot be unilaterally modified without any cause, especially when its suppression causes a loss (salary reduction) direct to the worker.  

For all the above, the company is condemned to pay the meal vouchers for the time that the modification was maintained and to compensate each worker at a rate of fifteen minutes per day worked, for not having respected the minimum rest period.  

4. >> Age may be grounds for invalidation of dismissal due to discrimination. Judgment of the Social Court No. 33 of Madrid of November 18, 2020, Judicial Decree 323/2020.

The nullity of up to 6 objective dismissals was raised since all the dismissed workers were between 49 and a half and 58 years of age, which could constitute an indication of unequal treatment.

The nullity due to age discrimination of five of the six workers is decreed, as they are over 50 years old and, additionally, the company is sentenced to pay compensation of € 20,000 for moral damage.

The main reasons that have led the judge to the previous determination are based, on the one hand, on a business practice, sustained over time, of dismissing employees over 50 years of age in a higher proportion than that of younger workers and , on the other, in the speech delivered by the president of the company in which he indicated: (i) the need to have greased the "exit mechanisms" in order to "accelerate the pace of replacing the old with the new" and that thus the youngest of the workforce had the opportunity to be promoted and assigned to more important jobs, (ii) with the objective of an annual elimination rate in the manager position of 10%.

It is a first and important precedent because age is introduced as a discriminatory factor (when to date the emphasis has been on discrimination by gender) and because of the relevance of the magistrate who dictates the resolution, Mr. José Pablo Aramendi, which has been appointed president of the Social Chamber of the National Court, competent court to resolve conflicts arising from collective dismissals that affect more than one autonomous community.  

5. >> It is not mandatory to pay bonuses to workers who resign if the fixed clause as a payment condition is registered with the company until the last accrual day. Judgment of the Supreme Court, Social Chamber, of October 22, 2020, Rec. 258/2018.

Is the worker entitled to receive the bonus when he presents his voluntary leave before the end of the year? And, if so, is he entitled to receive it in full or in proportion to the time he were discharged? 

The controversial clause, the legality of which has been accepted by the Chamber, establishes the obligation for the worker to remain in the company until the end of the temporary period of accrual of the bonus (the end of the calendar year) unless, for reasons beyond the control of the will of the same, could not continue in the company on that date. 

This doctrine relaxes the one maintained by the High Court to date, which declared abusive both those clauses that established the obligation for the worker to be registered at the time of the payment date (not accrual), as well as the stipulations that they established the need for the worker to continue in the company until the last accrual day, when the termination of the employment relationship was due to causes beyond the control of the worker. In light of the aforementioned doctrine, it is advisable to condition the payment of variable remuneration to the worker's permanence until the end of the accrual period, excluding certain cases such as, for example, declared or recognized unfair dismissals, death, disability, retirement, etc.  

6. >> Not every modification of the system of objectives for the achievement of variable remuneration (incentives) constitutes a substantial modification of working conditions. Judgment of the National High Court of March 4, 2021, Rec. 280/2020.

 It is questioned whether the communication of the new objectives to achieve the variable (incentives) constitutes a substantial modification of the working conditions (MSCT) or if the change is within the management power of the company. 

In the case prosecuted, the variable remuneration system established the elements of assessment of the objectives to be achieved in order to access the incentive and the weight assigned to each of them. 

This system was modified by the company without agreement with the legal representation of the workers, converting certain individual objectives into collective ones, making the perception of these incentives depend on the overall result of their department and also including a conditioning factor linked to productivity subject to the quality of calls, which was not required before. 

The Court's decision, in line with another recent judgment of the same Chamber dated June 11, 2020 (rec. 168 / 2.019), considers that the variable remuneration thus understood is associated with the work carried out and the results of the company, for There is no reason why it cannot modify the objectives unilaterally, especially when the contract states that it is up to the company to set the objectives.

Once again, the wording contained both in the employment contract and in the variable and / or incentive remuneration policies themselves is of particular importance, and must be expressly reflected in them that the setting, development and modification of the objectives of this policy is responsible. , in order to minimize the possibility that any change in the elements of this is not understood to be included in the business ius variandi.