Labor Law Newsletter - June 2023

EQUALITY PLAN AND ADMINISTRATIVE SILENCE

Registration of Equality Plans: the administrative silence is positive in the absence of an express denial resolution, Judgment of the TSJ of Madrid, Social Chamber of September 30, 2022, Rec. 437/2022.

The Administration rejected the registration of the Company's equality plan because it did not include the new legal requirements under Royal Decree 901/2020, of October 13. The Company filed allegations against this decision and the Administration did not resolve the matter within three months.

The Court has considered that the administrative silence in the matter of challenges to the registration of equality plans has an affirmative effect, and therefore the registration of the plan is appropriate.

ANXIETY AS AN OCCUPATIONAL ACCIDENT

Anxiety caused by comments made by co-workers is classified as an occupational accident. Judgment of the Superior Court of Justice of Cantabria of May 12, 2023, Rec. 208/2023.   

The Court holds that the anxiety diagnosed as a result of comments and attitudes of coworkers, such as the use of nicknames and disqualifications, is a consequence of a labor conflict and therefore, must be classified as an accident at work. The Court considers that there is a direct and unequivocal link between the anxiety and the performance of the work. 

The consideration as an accident at work entails the possibility that the worker can claim damages against the Company and the Administration can impose the surcharge of the benefits derived from the same.

PARTIAL RETIREMENT

Partial retirement cannot be imposed by the worker. Judgment of the Supreme Court of March 29, 2023, Rec. 2322/2020 

The Court holds that the company is not obliged to accept the worker's proposal for partial retirement, nor can the company impose this formula for the renewal of its workforce. 

Partial retirement is not an automatic right (unless there is an unequivocal contractual provision). There must be an agreement with the company for the worker to have access to partial retirement through a relief contract. 

It is not sufficient for the agreement to include the worker's right in accordance with the legislation in force.

DISMISSAL DURING IT LEAVE

If the company proves that the intention to dismiss was prior to the IT leave, there is no discrimination for this reason. Judgment of the Social Court No. 5 of Vigo of April 19, 2023, Rec 224/2023.  

The fact that the dismissal was carried out on the same day that the worker was on sick leave does not mean that the dismissal was necessarily associated with the medical leave situation, and the alleged discriminatory motive was not present.

Thus, the nullity claimed under Law 15/2022 is dismissed, and the dismissal is declared unlawful.

Therefore, we recommend always leaving a record of the preparatory acts of the termination, for example, via e-mails.

SHARED CUSTODY AND WORKDAY ADJUSTMENTS

Partial denial of the adaptation of the working day of 34.8 ET when there is shared custody of the minor. Judgment of the Social Court No. 4 of Vigo, of March 30, 2023, Rec. 109/2023.   

There is no justification for adapting the working day for all the weeks to care for the children when the applicant, by virtue of a divorce agreement, has established a shared custody regime of one week alternating. Therefore, the company is not obliged to accept it in its entirety. 

The claimant argued that eventualities could arise in other weeks, but the Court concludes that requests cannot be made on hypotheses and facts that we do not know if they can occur or not.

The same argument can be used for other claims also based on hypotheses or possibilities.