Labor Law News - October 2021

The company may make payroll deductions for unjustified delays at work. These discounts do not imply a fine and the company, apart from practicing these discounts, may apply the disciplinary regime. Judgment of the Supreme Court, Section 1 of May 27, 2021. RJ 2021\2778

The SC recognizes that unjustified delays of employees in their incorporation to their jobs can give rise to penalties for the company. In these cases there is no salary deduction because it has not been effectively accrued by the employee, so there is neither a fine nor a penalty in disguise.

Geographic mobility / conciliation

A female employee with two children under twelve years of age is entitled to a change of geographical location to reconcile her family life. Judgment of the Superior Court of Justice of Galicia of May 25, 2021. JUR 2021\193875
 

The employee requested a geographical modification in order to reconcile her family life. The company stated that there were no vacant positions in the work center that the employee had chosen, despite the fact that it proceeded to transform temporary contracts into permanent contracts. The Court understands that such transformation in this case is equivalent to the existence of vacant positions, declaring the mobility requested by this employee to be appropriate, as it understands that the rights of conciliation are fundamental rights. In addition, the judgment imposes a penalty of 6,000 euros on the company for the moral damages caused to the employee.

Video surveillance

Admissibility of video surveillance evidence to justify the dismissal of an employee when the video surveillance system does not belong to the employer but to a third party company. Judgment of the Supreme Court, of July 21, 2021, Rec. 4877/2018.

The Supreme Court understands that the recording made by means of a video surveillance system should have been admitted as evidence at trial, since it understands that there was no violation of fundamental rights even though this system did not belong to the company that carried out the disciplinary dismissal of the employee (Securitas Seguridad España) but to the company that owned the work center (IFEMA).
 
The Supreme Court reiterated its doctrine by understanding that (i) the video surveillance system was known to the employee because it was evident and notorious and that (ii) its use as evidence complied with the jurisprudential requirements of proportionality, being necessary in order to prove the truthfulness of the facts imputed to the employee. Likewise, following the constitutional doctrine, the employee was informed by Securitas that they became part of a file under its responsibility and signed a recording authorization with Ifema and Securitas to incorporate such images to its human resources file for the same purpose of assessing and verifying the correct fulfillment of its labor obligations. The court considered it relevant that the employee was aware of the existence of the video surveillance system.

Work related-accident / discrimination

Nullity of the disciplinary dismissal of an employee who had suffered an accident at work due to a reasonable appearance of possible disability. Judgment of the Superior Court of Justice of Galicia of April 13, 2021, Rec. 160/20.

The Supreme Court of Justice declares the nullity of the dismissal of an employee on the day he suffers a work-related accident due to discrimination based on the reasonable appearance of disability.
 

The Court argues that from the fact that the employer went to the hospital to inquire about the employee's health on the same day of the accident, it is deduced that the facts are subsumable under the concept of direct discrimination based on disability, in which it is not required that the discriminated individual has a disability, but that he is discriminated against on an appearance of disability that the discriminating individual believes he has, regardless of whether or not he has a disability.