Labor Law Newsletter- March 2022

14/03/2022

Labor Law Newsletter- March 2022

Flash informativos

Conciliation and teleworking

The reconciliation of work and family life does not grant the right to telework every day. Judgment of the Sala de lo Social No. 31 of Madrid of December 20, 2021, Rec. 1169/2021.

It should not be granted when: (i) it deviates from the existing collective agreement on teleworking in the company, (ii) it is not accredited to what extent the face-to-face work some days during the week harms the reconciliation of family life and (iii) the company does substantiate the need.

The lack of agreement between the parties, provided that there has been negotiation, does not imply a violation of fundamental rights.

Business Succession

There is no business succession when the incoming company assumes 3 of the 9 employees assigned to the contract. Judgment of the Supreme Court, Sala de lo Social, of January 18, 2022, Rec. 3876/2019.

The subrogation of only 3 of the 9 employees assigned to the contract does not represent an essential assumption of the workforce from a quantitative point of view.

In addition, there are no additional elements to understand that it is a relevant assumption of staff (for example, that these 3 employees occupied key positions).

Employment trial period

It is valid to fix the duration of the trial period by reference to the period established in the collective bargaining agreement. Judgment of the Supreme Court, Sala de lo Social, of December 9, 2021, Rec. 3340/2019.

It would only be valid if the collective bargaining agreement fixes the specific duration instead of a maximum period.

The consequence of incorrectly setting the length of the trial period could mean, in addition to the consideration of the unfairness of the dismissal, the possible nullity of the dismissal if it occurred in the context of pregnancy, etc.

Salary: extraordinary payment

Right to receive again the extraordinary payments that were being prorated by the company. Judgment of the Supreme Court, Sala de lo Social, of January 19, 2022, Rec. 479/2019.

When the collective bargaining agreement does not allow the proration of extraordinary payments and the company pays them on a prorated basis, the employee is entitled to receive these bonuses again, independently.

Take into account the provisions of the collective bargaining agreement regarding bonus payments, since the payment of the same in a different manner from that established in the agreement could mean that the company would have to pay them twice.

Workplace harassment and Occupational Risk Prevention

The existence of a situation of harassment in the workplace does not always imply a breach by the company of occupational risk prevention regulations. Judgment of the Superior Court of Justice of the Basque Country, Sala de lo Social, of July 6, 2021, Rec. 585/2021.

The plaintiff sues for breach of the Occupational Risk Prevention Law connected to the violation of fundamental rights based on the claim of harassment in the workplace.

It is not possible to deduce non-compliance by the company in preventive matters when (i) the existence of an occupational risk prevention plan is proven, (ii) there is a general and specific risk assessment and (iii) the workplace harassment protocol was activated.

Collective dismissal during pandemic

The collective dismissal after the application of an ERTE Covid-19 is declared admissible. Judgment of the Supreme Court, Sala de lo Social, of December 16, 2021, Rec. 210/2021.

The ERTE previously adopted by the company was due to the uncertainty generated by the Covid-19 pandemic.

Subsequently, the company's main customer reported a significant reduction in long-term service, justifying the adoption of the collective dismissal.

There is evidence of a first conjunctural cause and a second structural cause.