Labor Law Newsletter- February 2022

Collective Bargaining Agreements / Workday

A company agreement may regulate a longer working day than the working day provided for in the collective bargaining agreement of the sector if the latter is in ultra-activity. Judgment of the Supreme Court, Sala de lo Social, of October 5, 2021, Rec. 4815/2018.

The High Court establishes that, when the sectoral collective bargaining agreement is in ultra-activity, the collective bargaining agreement of the company does not have to respect the provisions of the former in terms of working hours, and the company agreement may establish a higher one.

The judgment would allow us to question whether this doctrine would also apply in wage matters, especially since the labor reform of December 2021 has established the priority of application of the sectoral agreement in this respect.

Teleworking / Compensation costs

Application of the principle of equality in the compensation of costs for teleworking, regardless of the way and the moment in which such modality was accessed. Judgment of the National Audience, Sala de lo Social, of November 5, 2021, Rec. 218/2021.

Under the principle of equality, the NA recognizes the right to a monthly financial compensation of 50 € to those employees who, as a result of the temporary closure of the work center due to the covid-19, have to provide services in distance mode, thus equating them to those who took advantage of the Telework Agreement signed months earlier, which expressly provided for the payment of such compensation. The NA understands that there is the same factual reality, since all of them perform their work in non-presential conditions, so there is no reason for a different treatment.

Contingency determination / COVID-19

An employee can benefit from the occupational contingency without being health or social-health personnel as long as he proves that he contracted COVID-19 in the workplace. Judgment of the Superior Court of Justice of Catalonia, Sala de lo Social, of October 25, 2021, Rec. 629/2021.

The employee who contracted COVID-19 was a cleaner in a nursing home. As she was not health or social-health personnel, it is not presumed that she was infected for work-related reasons. However, the Court understands that the disease was caused exclusively at work, given that the work environment was the same as that of the healthcare personnel, and that there was also a lack of safety measures in the center and a high concentration of contagions on the dates close to the temporary disability.

Digital disconnection/ Communications during temporary disability

Notifications sent by e-mail to employees in a situation of temporary disability will be understood to have been made after the reincorporation and effective reception of the communication. Judgment of the Superior Court of Justice of Madrid, Sala de lo Social, of September 24, 2021, Rec. 605/2021.

On the day on which the company notified the employees of a substantial modification of the working conditions, the employee was in a situation of a temporary disability, so that, due to her right to digital disconnection, she was not obliged to open the communication. The court understands, therefore, that the computation of the limitation period for the contestation of the modification of the working conditions is the date on which the employee actually returns to work and opens the email with the notification.

A burofax would be a better option to guarantee this right.

Additional Compensation / Unfair dismissal

It is not appropriate to pay an additional indemnity to that which corresponds for unfair dismissal. Judgment of the Superior Court of Justice of Asturias, Sala de lo Social, of October 19, 2021, Rec. 1905/2021.
 
Although the doctrine of the Superior Court of Justice is very divided, on this occasion the Superior Court of Asturias has once again denied the relevance of an additional compensation to that for unfair dismissal for the damages allegedly caused by the dismissal, having previously ruled out a violation of fundamental rights.

The Court argues that the purpose of the rules governing compensation for unfair dismissal is already to compensate for the damages caused by the termination, so that it is not appropriate to claim them by other means.

Illegal assignment with the intervention of a temporary employment agency

There is an ILLEGAL ASSIGNMENT of employees, being a very serious misconduct, when a temporary employment agency uses the contract to meet structural or permanent needs. Judgment of the Supreme Court, Sala de lo Social, of December 2, 2021, Rec. 4701/2018.

The court understands that, when a contract for the provision of services is used to cover a permanent position of the user company, it is a case of illegal assignment (very serious misconduct) and not of mere irregularities between the temporary employment agency and the user company (serious misconduct).

This confirms that this action must be classified as a very serious misconduct of illegal assignment and not as a serious misconduct derived from an irregularity in the purpose of the contract for the provision of services.