Labor Newsletter - January 2022 | Judgments

The Supreme Court establishes that the exact duration of the probationary period must be put in writing

In its recent judgment dated December 9, 2021, the Supreme Court analyzed the validity of a probationary period that did not expressly state its duration, referring to the applicable collective bargaining agreement and the Workers' Statute (WS), which merely established a "maximum term".

The judgment considers that this reference does not comply with the validity requirements of the trial period, it being necessary to establish its specific duration, thus avoiding uncertainty for the employee as to the time of termination. For this reason, it concludes that the agreed trial period is null and void, as it does not comply with the requirements of Article 14 of the WS.

A different matter would be if the collective bargaining agreement establishes a specific duration of the trial period - not a maximum duration - in which case the trial period agreed upon would be valid, referring to the one established in the collective bargaining agreement.

The employer's representatives on the health and safety committee do not enjoy the guarantees provided for workers' representatives

The Supreme Court, in its ruling dated 9 December 2021, resolved a case discussing whether an employee who represents the employer in the health and safety committee enjoys the guarantees in the event of dismissal (processing of a contradictory file and the choice between reinstatement or termination).

The judgment resolves this issue by determining that the guarantees are intended to protect the exercise of union activity and the powers of the workers' representatives, which is not the case of the committee member acting in the name and on behalf of the company.

Employees do not have the right to unilaterally modify their working hours as a result of their work-life balance rights

The Superior Court of Justice of Cantabria (SCJC) in its ruling of 3 December 2021, examines a case in which the worker requested a shift change to work only from Monday to Friday.

The TSJC chamber considers that neither article 37.6 (relating to the reduction of the working day) nor article 34.8 (relating to the adaptation of the working day) of the Workers' Statute implies the possibility of unilateral modification of the working day by the employee. In this regard, he recalls that article 34.8 of the WS requires the parties to negotiate in good faith, but includes the possibility of providing sufficient organizational reasons to justify the employer's refusal to modify the employee’s working hours.

Finally, the worker's claim was rejected, considering that the company's refusal was justified due to organizational damage if the change were to be carried forward and given that the shifts were agreed upon by collective bargaining.

The National High Court declares a security policy that allows the employer to search workers' belongings in a preventive manner as null and void

In the case analyzed by a judgment of 30 November 2021 the National High Court analyzes the validity of the security policy implemented by the company whereby employees must show the contents of their bags or backpacks to the store manager at the time of departure, whenever possible in an area with video surveillance visibility.

There was no evidence of prior suspicion or conduct on the part of the employees that made it necessary to control the bags in order to protect the company's assets. These were preventive and not reactive controls and, consequently, disproportionate.

The Social Chamber of the National Court upheld the claim and declared the clause of the security policy containing this measure as null and void on the grounds that the measure was neither proportionate, suitable, nor necessary, concluding that the company's decision exceeded the powers granted to the employer by Article 18 of the WS and entailed an unlawful interference with the right to privacy of Article 18.1 of the Spanish Constitution.

The information contained in the working hours register can be proven wrong: overtime can be declared even if it has not been recorded

A recent decision of the Superior Court of Justice of Cantabria, dated 11 November 2021,  establishes that the working hours register is not a privileged document of proof and admits proof to the contrary. In the analyzed case, the first instance court upheld an employee's claim for overtime. In the appeal phase, and in relation to the working hours register, the company alleges that "the days have not been registered (from October 14 to November 3), and in the absence of evidence to the contrary by the plaintiff that contradicts this reality, the realization of overtime has not been justified".

The judgment states that "the obligation to record working hours, not complied with on the days referred to, does not imply a "iuris et de iure" presumption, nor exclusive proof that the documented hours have not been performed when, through a general assessment, it is justified that, in reality, due to certain circumstances included in the proven facts such hours were performed outside the working hours register".

Disciplinary dismissal due to non-compliance with the teleworking policy and neglect of duties is fair

The High Court of Justice of Madrid, in a judgment of 20 October 2021, has declared the fair disciplinary dismissal of an employee for failure to comply with the teleworking rules established by the company. The employee was dismissed for breach of contractual good faith and continuous and voluntary decrease in performance, having stayed in a second residence (contrary to the company's teleworking rules) and having shown a very low performance and neglect of duties during teleworking.

The worker did not have a stable Internet connection in his second residence, significantly reducing his productivity, and showed passivity in the exercise of his functions, requiring the intervention of other colleagues to carry them out. Furthermore, the employee did not comply with the obligation to record his working day during teleworking, despite having signed a document including said obligation prior to the beginning of his remote working.

The court reasoned that the acts of the employee were carried out in a fully conscious, serious and guilty manner, and without any justification, which implies a breach of contractual good faith, a principle that must govern labor relations, since it was proven that he was perfectly aware of the unlawful acts he was committing.