Labor Law Newsletter - November 2022

COLLECTIVE DISMISSAL

The ECJ is referred to the Court of Justice for a preliminary ruling on whether a collective dismissal should have been carried out. Order of the Superior Court of Justice of the Balearic Islands dated 29 August 2022, Rec:3/2022

Crippled with the need to reduce the workforce after the loss of several contracts with customers, the company "offered" to all workers the possibility of working in another company, after signing a written voluntary redundancy drafted by the company.

Upon the resignation of several of them, the employer enforced objective dismissals in a number that did not exceed the thresholds of collective dismissal.

HOLIDAY ENTITLEMENT

If the company does not expressly deny the holiday entitlement, they are understood as tacitly authorised. Judgment of the Superior Court of Justice of Castile La Mancha dated 14 July 2022, Rec:880/2022. 

Disciplinary dismissal for unjustified absence of a worker during holiday leave not expressly denied is deemed inadmissible.

Workers are not entitled to take leave of their own accord, if they do, may be dismissed. However, in the absence of an express and clear refusal by the company, it can be understood that tacit authorisation has been granted.

REFERENCES FOR EX-EMPLOYEES

Informing a future employer that the candidate has sued their previous company breaches their indemnity guarantee and entails damages. Ruling of the Supreme Court of Justice of Madrid dated 15 June 2022, Rec: 442/2022.

References to a former employee must be limited to their professional performance and exclude assessments of personal situations.

The company that informed the future employer that the candidate had taken leave of absence to give birth and that had filed a lawsuit infringed her right to effective judicial protection in the realm of indemnity guarantees, for which the company was sentenced to pay the former employee a compensatory payment of 6,251 euros.

TELEWORKING

Which clauses must not be part of the remote working agreement? Ruling of the National Court dated 22 March 2022, Rec:33/2022.

The Chamber has understood that the clauses that:

(i) indicate that the expenses will be paid in accordance with the provisions of the collective agreement, when the latter does not include anything regarding said expenses;

(ii) those that restrict the right of reversibility to the worker's face-to-face work;

(iii) those that reflect data, such as personal mobile phone and personal email, in order to contact the worker; and

(iv) those that require the prevention technician to access the home of the teleworker to carry out the occupational risk assessment of the position.

VIDEO SURVEILLANCE AND DISMISSAL

The viewing of the cameras to prove an employment breach is valid. Judgment of the Constitutional Court dated 29 September 2022.

Case law of the Supreme Court on the control of work activity through video surveillance cameras has undergone an extensive overhaul that has tended to make the formal requirements for the validity of this evidence in dismissal trials more flexible.

Following this trend, the SC admits that in the event of a well-founded suspicion of irregularities, this evidence does not breach either the right to data protection or privacy, regardless of the fact workers had not been previously informed about its installation or its disciplinary purposes.