Newsletter Laboral - November 2023

EQUALITY / TELEWORKING

In the case of teleworking, the Company is not required to provide ergonomic chairs, although it must provide them to workers who provide on-site services. Judgment of the National Court of Justice of October 3, 2023, Rec. 168/2023.

The Court justifies its decision by stating that there is no ergonomic risk for teleworkers and therefore rules out any violation of ORP regulations, nor the Company's obligation to apply them under equal conditions to the entire workforce. 

The restrictive interpretation made by the Court is remarkable, to say the least, in not appreciating any violation of the principle of equality between people who provide services in person and those who telework, which is precisely and specifically predicated on article 4.1 of the Distance Work Law.

HIRING / OBJECTIVE DISMISSAL

Fair objective dismissal despite the fact that the Company had recently hired a new employee that would absorb part of the functions of the dismissed worker. Judgment of the Supreme Court of October 10, 2023, Rec. 3103/2021.

The SC takes into account: (i) the existence of a real economic cause and (ii) that the hiring does not imply a substitution of the dismissed worker, since the new hiring covers more functions than those performed by the dismissed worker. Therefore, it considers that it is a reorganization of human resources within the framework of its freedom to decide.

With this pronouncement, it seems that the SC "relaxes" the requirement of the reasonableness of the measure, stressing that, as a Court, it cannot and should not make, except in bad faith, a judgment of opportunity on business management.

COLLECTIVE DISMISSAL / EXPIRATION PLACE

Commencement of the computation of the expiration period to challenge a collective dismissal carried out by sedimentation or dripping. Judgment of the Supreme Court of October 19, 2023, Rec. 183/2022.

When the collective dismissal has been carried out by sedimentation or drip, the expiration period has to be counted from the moment in which the Legal Representation of the Workers (RLPT) has had reliable knowledge of the computable contractual terminations, even if they have been carried out previously.

Therefore, the concealment or lack of communication to the RLPT of the terminations of contracts that may constitute a collective dismissal does not lead to the expiration of the expiration period of the dismissal action.

TRAINING / TIMETABLE

The unjustified denial of a specific timetable in order to attend a training course may lead to an award of damages. Judgment of the Superior Court of Justice of the Canary Islands, Las Palmas de Gran Canaria, of May 18, 2023, Rec. 820/2022.

The judgment concludes that the company obstructs the employee's right to professional training, which is necessary for his promotion, this also being understood as an obligation of the company. Consequently, the Company was ordered to pay damages of 852.10 euros.

Thus, we can conclude that, even in cases where there is no legal requirement (e.g. reconciliation of work and family life), companies must justify the reasons for the refusal of a specific timetable.

OCCUPATIONAL ACCIDEN

The reckless conduct of the worker when returning from work excludes the existence of an accident at work. Judgment of the Supreme Court of July 4, 2023, Rec. 3749/2020.

In the specific case, recklessness was found in the conduct of the worker who was run over because he had crossed a multi-lane motor vehicle road in a place not designated for crosswalks, at night, without direct light, not wearing reflective clothing and loaded with packages. Although not every infraction of the traffic regulations constitutes reckless conduct, it does in the present case, as it is understood that there is a total lack of care on the part of the injured party and a relevant seriousness in his conduct.

We see, therefore, that although the defining circumstances of an accident at work are present in terms of place (or in itinere) and time of work, it is always necessary to analyze the specific circumstances of the accident.