Labor law Newsletter - February 2023

WORKING FROM HOME (WFH)

The company must pay working from home (or telecommuting -WFH) expenses even if this entails cost savings for the worker. Ruling of the National Court dated 10 November 2022, Rec. 269/2022.

The regulations include the obligation of the company to pay compensation for telecommuting expenses on a mandatory basis. Therefore, the Court has concluded that the pact through which it is agreed that the company need not make any payment sustaining the argument that the worker, by telecommuting, what they actually benefit from is savings from no longer travelling to the workplace as they did before is deemed inadmissible in Law.

On the other hand, this ruling considers that although for unforeseen needs the company may require the worker to attend the office on a given day scheduled for WFH, it is not lawful to agree that such a day of on-site engagement will not be compensated or replaced by another of teleworking..

RE-ENTRY AFTER LEAVE OF ABSENCE

Failure to facilitate the full reinstatement of an employee may result in the compensated termination of the employment relationship. Ruling of the Supreme Court of Justice of Madrid dated 23 November 2022, Rec. 791/2022.

After taking a leave of absence, the employee had to travel 45 km to collect her computer, the company did not address the technical deficiencies notified of by the employee and did not reactivate her email account.

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DISMISSAL ANNULMENT⁠– WHATSAPP CLAIM

Annulment of dismissal for breach of the indemnity guarantee. Ruling of the Supreme Court dated 15 November 2022, Rec. 2645/2019.

A worker claims overtime from their employer via WhatsApp and, the next day, without any grounds, is dismissed. The Supreme Court of Justice ruled that the dismissal was not retaliatory, as the messages did not imply an intention to claim either judicially or extrajudicially.

However, the High Court understands that the messages are preparatory or prior to the judicial claim, meaning the dismissal breaches the worker's effective judicial protection.

TEMOPORARY ⁠REDUNDANCY ⁠SCHEMES ⁠(ERE) AND GROUPS OF COMPANIES

Can I file a collective dismissal from a Group of Companies for employment purposes without judicial recognition? Supreme Court Ruling 25 June 2014 and National Court Ruling 26 July 2012.

Yes, it is legitimised whenever the status of a group is recognised without dispute by the shareholding interest. It is timely to mention the express recognition through the records of incorporation of the representative and negotiating commissions.

We must not overlook that recognition as an Employment Group can have a bearing on the determination of the territorial jurisdiction of the Employment Authority since all the workplaces affected in the Group must be taken into account.

CONVENTIONAL IMPROVEMENTS AND COVID-19

Voluntary improvements to the collective bargaining agreement for temporary incapacitation resulting from workplace accidents do not apply to TI situations caused by periods of isolation or COVID contagion. Ruling of the Supreme Court dated 15 November 2022, Rec. 109/2019.

Although the emergency legislation assimilated the periods of isolation or contagion due to COVID-19 to an occupational accident, this assimilation was only for the purposes of the economic benefit for temporary incapacitation.

Therefore, the Chamber understands that a company does not have to pay the supplement for an accident at work established as a conventional improvement, but that established for the common disease, since we are not facing an TI derived from an accident at work, rather "assimilated".