Labor Law Newsletter - July 2022

TERMINATION OF PERMANENT SEASONAL EMPLOYEES - LOSS OF CONTRACT

Permanent seasonal employees may no longer be dismissed after the termination of a contract. Ruling of the Supreme Court of Justice of Madrid dated 30 March 2022, Rec. 167/2022. 

Following the entry into force of the labour reform, when the company loses a contract, it has the obligation to respect a waiting period for relocation between subcontracts for a term of three months (or failing this, the waiting period established through the collective agreement). After that, the Company could include the worker in a Temporary Redundancy Plan (ERTE) or proceed with their objective dismissal, depending on whether the impossibility of relocation to another contract is deemed temporary or permanent.

EQUALITY AND INDIRECT DISCRIMINATION

Indirect discrimination occurs when a wage supplement is received mostly by male employees. Ruling of the Supreme Court dated 8 April 2022, Rec. 20/2021. 

In the respondent company, the reduced working day to leave prior to 16:00 hours is an entitlement for 298 women and 12 men. The granting of meal allowance for workers on a split schedule, subject to their leaving after 4 p.m., constitutes indirect discrimination against female employees, since the female group is deprived of this meal allowance and the company has failed to justify whether the fixing of this time responds to reasons unrelated to a discriminatory motive. Therefore, when conciliation measures are mainly entitled to women, it should be noted what consequences may arise with regard to salaries.

REMUNERATION FOR LEAVE OF ABSENCE

Night and work supplements must be paid on Saturdays, Sundays and holidays when paid leave is taken, provided that the days of absence coincide with scheduled working days under these circumstances. Ruling of the National Court dated 31 March 2022, Rec.331/2021.

If the collective agreement does not determine which items include the "paid" nature of the leave, no remuneration items may be excluded. On the contrary, the Court dismisses that the aforementioned supplements are included in the remuneration of the permit when for a given permit the collective agreement of the company did expressly establish that their remuneration would only be in accordance with the base salary and the length-of-service supplement. It is worthwhile agreeing upon the remuneration of paid leave in the collective agreements of the Company.

COLLECTIVE BANKRUPTCY DISMISSAL

The individual challenge of a collective bankruptcy dismissal is the jurisdiction of the judge ruling on the bankruptcy. Ruling of the Supreme Court dated 16 March 2022, Rec. 3376/2020. 

Even if the existence of a group of companies for employment purposes is alleged, a worker included in a collective bankruptcy dismissal would have to challenge it before the judge ruling on the bankruptcy following the channels of the insolvency matter. On the contrary, if the representatives jointly challenge the collective dismissal, they must file an appeal against the extinction order, so that in the collective challenge the social order is empowered to try the matter.

SEVERANCE FOR DISMISSAL AND BONUS

If no bonus has been accrued in the year prior to dismissal, the variable remuneration accrued in the penultimate year should not be included. Ruling of the Supreme Court dated 30 June 2016, Rec. 2990/2014.

The salary regulating dismissal must include the variable remuneration accrued in the year prior to dismissal, even if the date of collection is post dismissal. However, if in the year prior to dismissal no bonus has been accrued since the targets for its accrual have not been met, the bonus obtained in the last year though accrued in the penultimate year must not be included. Therefore, what is relevant for the purposes of calculating the regulatory salary is the period of accrual of the bonus, not the date of payment.

SALARY CLAIMS

It is possible to claim the wage differences resulting  from the reduction of a salary supplement that the company made 9 years ago. Ruling of the Supreme Court dated 13 June 2016, Rec. 297/2020.

The company did not carry out the SMWC (Substantial Modification of Working Conditions) procedure and did not notify of the salary reduction to the worker. The statute of limitations of the action for a claim for a sum of one year does not prevent the worker from being able to request the declaration of its entitlement to the payment of the future supplement and the differences of the last year.

Thus, the passage of 9 years without the worker challenging a business action does not exempt the latter from future contingencies.