Labor law Newsletter - May 2023

TELEWORKING

Fair dismissal of an employee for performing personal tasks during the working day, in the form of remote work. Ruling of the Superior Court of Justice of Madrid of July 18, 2022, Rec. 360/2022.

The teleworking agreement provided that the company could carry out "controls", both telematic and in person, to check the provision of the service.

In this way, it was detected that the teleworker was carrying out personal tasks during working hours, even leaving his home as a place of work, not notifying his superiors and falsifying the working day record.

The Court considers that these controls comply with the principles of suitability, necessity and proportionality, and considers that the alleged facts are sufficiently serious to justify the disciplinary dismissal of the employee.

WORKDAY RECORD

A workday record based on a unilateral declaration that only depends on the worker himself is valid. Ruling of the Supreme Court, Social Chamber, January 18, 2023, Rec. 78/2021.

The Trade Unions consider that the employee may be induced not to reflect possible extensions of the daily working day in said "self-declaration", and therefore, said record may be influenced by the fear of recording what would later be "overtime" (together with the fact of having to request compensation or having to refuse to work overtime).

However, the High Court considers that this registration system complies with the requirements of being objective, reliable and accessible, since all registration requires the worker's active collaboration in one way or another at the beginning and end of the working day.

OCCUPATIONAL / TELEWORKING ACCIDENTS

A heart attack suffered by a teleworker at home is not considered an occupational accident. Ruling of the Superior Court of Justice of Madrid, Social Chamber, of February 3, 2023, Rec. 812/2022.

Although the accident occurred at the workplace (the worker's home), it took place outside working hours and it was not proven that the worker was providing his services at that time.

Within the scope of the presumption of an accident at work to which the doctrine usually adheres, in this case it is taken into account that the accident took place before the start of the working day.

In the same sense, in an analogous case, the TSJ of Catalonia ruled in a decision of December 15, 2020.

NULLITY OF THE DISMISSAL ON TEMPORARY DISABILITY

Nullity of the dismissal in application of Law 15/2022. Ruling of the Social Court No. 3 of Pamplona of April 4, 2023, Rec. 738/2022.

Even taking into account the difference in the criteria maintained by other Courts and Tribunals, the Court in question considers that, in this case, there is a clear proximity between the dismissal and the situation of illness and medical leave. It also considers that there is no cause whatsoever to justify the termination decision.

Based on the legal mandate that prohibits discrimination on the grounds of illness and in accordance with the fact that the WSA requires that dismissals based on discriminatory grounds be declared null and void, the Court declared the dismissal null and void.

Thus, the current disparity of pronouncements on the qualification of the dismissal carried out during the TD becomes evident.

PROBATIONARY PERIOD

The generic reference to the Collective Bargaining Agreement for the establishment of the trial period in the contract is not valid. Ruling of the Supreme Court, Labor Chamber, April 12, 2023, Rec. 1269/2022.

Given the legal requirement that the trial period must be in writing, the High Court once again reiterates that, for the legal security of the employee, its exact duration must be stated, which does not necessarily have to be equivalent to the maximum duration established by the Collective Bargaining Agreement.

The absence of such specification in the contract entails the nullity of the clause relating to the trial period and, therefore, the termination of the employment contract for not exceeding the trial period constitutes an unfair dismissal.