Labor law Newsletter - March 2023

SEVERANCE PAY

The company must pay compensation in addition to that corresponding to unfair dismissal. Ruling of the Superior Court of Justice of Catalonia, Industrial Affairs Chamber, of 30 January 2023, Rec. 6219/2022.

It is ordered to pay compensation higher than that legally assessed, which does not reach €1,000, on the understanding that the aforementioned amount does not compensate for the damage caused by the loss of the job, nor does it entail a deterrent effect of dismissal for the company.

The largest compensation amount granted, standing at almost €3,500, is awarded based on the certain expectation of having been included in the Temporary Redundancy Scheme due to force majeure processed a few days after the dismissal of the worker and in the face of the impossibility of benefiting from the extraordinary measures approved, which recognised the right of working people to access unemployment benefit, even without the minimum contributions necessary for it.

TELEWORKING  - PRIVATE MOBILE

An application cannot be enforceable installed on the teleworker's private mobile. Ruling of the Superior Court of Justice of Madrid, Industrial Affairs Chamber, dated 31 January 2022, Rec. 5228/2021.

Although the purpose of the mobile application was to guarantee IT security, the Chamber reminds us that the teleworker cannot provide own its means for the development of its provision of services.

 Therefore, the business requirement relating to the contribution by workers of their particular mobile phone and the implementation in it of the aforementioned application is considered disproportionate, this measure constituting a substantial modification since it affects the agreed working conditions.

COLLECTIVE DISMISSAL – AGREEMENT - AGE

Agreeing to a lower compensation improvement for workers aged 60 and over does not constitute a discriminatory measure on grounds of age. Ruling of the Superior Court, Industrial Affairs Chamber, dated January 24, 2023, RCUD. 2785/2021.

To this end, the Chamber considers that this distinction of treatment, the result of collective bargaining, is justified by the unequal situation in which both workers remain after the termination of their employment contracts, deeming the solution of agreeing a lower compensation rate for those who are closer to access to retirement pension and have been granted greater social protection coverage as reasonable and proportionate.

Regarding the foregoing, it is worthwhile recalling that the Constitutional Courted already validated at the time the use of age of a selection criteria for workers affected by collective dismissal procedures.

Digital disconnection

Does the right to digital disconnection breach the communications sent to workers after the end of the working day? Ruling of the Superior Court of Justice of Galicia, Industrial Affairs Chamber, dated 23 November 2022, Rec. 4175/2022.

It is concluded that the conversations held in a WhatsApp group, outside of working hours, do not breach the right to digital disconnection of the claimant, as there is no requirement for immediate response, obligation to remain connected and/or indeed to form part of the aforesaid group.

The digital communication media are the main mechanism of interlocution in employment relations, meaning it becomes essential to regulate the use of work devices, in order to promote their proper use outside working hours and guarantee the health and conciliation rights on the part of workers.

INJURY AT WORK

The fall suffered by the claimant when she went from her workplace to a bar near it in the half hour she has as a snack break is classified as an industrial accident. Ruling of the Supreme Court, Industrial Affairs Chamber, of February 9, 2023, RCUD. 2617/2019.

The Chamber acknowledges the existence of an accident at work, inasmuch as it considers that the accident occurred on the occasion of work, when it occurred during the break time available to the worker to replenish her strength, whereby if she had not been providing services it would not have occurred.

In this regard, neither the fact that the aforementioned fall occurred outside the workplace, nor the fact that the worker was not carrying out any work commissioned by her employer, prevent the accident from being classified as a work-related accident in view of the causal relationship between the injury itself and her employment.