Newsletter Laboral - May 2024

Adaptation of working hours

Is it Valid to regulate in the collective Bargaining Agreement a scoring system for Access to or refusal of the working day adaptations of art. 34.8 ET? STSJ of Galicia of 24 January 2024. Rec 4565/2023

Worker requesting a fixed morning shift to care for his children (art. 34.8 ET) is refused by the Company because he does not achieve the necessary points agreed in the equality plan of the Collective Bargaining Agreement where a scale of access for such adaptations has been agreed through a points system.

The Chamber considers that a system of scales guarantees that the refusal to grant an adaptation of working hours is not based on criteria adopted unilaterally by the company but within a committee that is a joint committee, thus complying with the legal mandate of the negotiators.

Register equality plan

Is it possible to register a non-negotiated equality plan? STS of 11 April 2024. Rec. 123/2023

The Ministry of Labour and Social Economy was ordered to register a non-negotiated equality plan drawn up unilaterally by the company, the registration of which had been refused on two occasions by the body, as a result of the failure to prove that the negotiating committee had been duly constituted. 

The company had requested the most representative trade unions to set up the negotiating committee for more than a year on several occasions, but to no avail. 

The reasons: (i) there is a legal obligation for the company to have an agreed equality plan (ii) its absence generates the commission of a very serious labour infringement, as well as the impossibility of attending certain public meetings and there is no possibility of compliance due to the absence of the RLT and non-appearance of the trade unions at the constitution of the negotiating committee. 

Supervening inaptitude/dismissal

Is it viable to carry out an objective dismissal due to supervening unfitness at the present time? STSJ of Asturias, of 13 February 2024, Rec. 1836/2023

Worker who, after two years on TD, returns to his job, and is dismissed as a result of a ‘not apt’ issued after a medical examination.

The STSJ validates the dismissal agreed by the Company, because it was accredited: (i) the limitations presented by the worker - not ailments -; (ii) the impossibility of adapting the post with these limitations, and; (iii) the impossibility of occupying another different post in the organisation with the limitations he had, in short, the attempt to make reasonable adjustments.

Teleworking/ Termination for non-payment costs

Can an employee terminate his or her employment relationship if he or she is not paid teleworking expenses? STSJ of Catalonia of 12 January 2024, Rec. 4140/2023

The worker requests the termination of her employment relationship by application of the provisions of article 50.1.c) of the Workers' Statute for serious breach by the employer, in relation to the non-payment of the compensation amounts established on a monthly basis for the teleworking service.

Company vs. sectoral agreement / Tables

After the labour reform, do sectoral wage tables always prevail over company wage tables? Audiencia Nacional, Sentencia 31/2024 de 11 March 2024. Rec. 340/2023

The latest labour reform (year 2021), eliminated the priority of application of the Company Agreement in salary matters, both in the amount of the basic salary and the salary supplements. 

Notwithstanding the above, the SAN 31/2024 of 11 March reiterates that article 84.1 of the ET has not been eliminated or modified by the reform, which maintains as general the rule of prior in tempore, which establishes that the agreement that is approved and published first in the official gazette has priority of application.