Labor Newsletter - May 2022 | Judgements

Supreme Court determines interpretation methods on application of the minimum wage

The Supreme Court has delivered two judgments setting out its view on interpretation of the salary that must be compared against the new minimum wage. Namely, its judgment of January 26, 2022 states that the amount received in respect of a length of service supplement is part of the salary that must be compared against the minimum wage. And its judgment of March 29, 2022 determines that the rule described above applies to all pay supplements.

A substitute representative on the list who becomes representative is entitled to choose reinstatement if dismissal is held unjustified

In a judgment on March 15, 2022, the Supreme Court determined that workers’ representative status is automatically acquired after the previous representative has resigned and takes effect against third parties even if the company is unaware of this fact.

Therefore, in the case decided by the court, it was recognized that the worker who was substitute on the list was entitled to choose reinstatement insofar as her dismissal was held unjustified and occurred after she had become representative.

Supreme Court allows video surveillance camera recordings to be used as evidence

A Supreme Court judgment on March 30, 2022 examined whether proof consisting of video surveillance recordings produced by the company to support the worker’s dismissal on disciplinary grounds should be allowed as evidence. After the dismissal had been held null and void at  lower instances, the Chamber held that evidence consisting of the reproduction of video surveillance camera recordings was a justified, suitable, necessary and proportionate measure against the sought aim, and therefore fulfills the proportionality requirements. The claimant was not notified that he was being captured on video while he was at work or of the use of those images for disciplinary purposes. However, the video surveillance was continuous, random checks were made, and the workers’ representatives had been informed of the use of cameras to prevent a problem relating to products inexplicably going missing at the establishment.

An agreement on recording working time which included a correction factor of 2 hours a day is valid

The supreme court judgment on April 5, 2022 held to be valid an agreement on recording working time which included a general correction factor of two hours per day. The agreement in question included this correction factor of two hours per day (and of 30 minutes per day for uninterrupted working hours), relating, for example, to rest periods, lunch breaks, unpaid leave or any type of break or rest period. It also included a provision whereby workers could not work overtime, although they would be compensated for any excess hours worked after applying the correction factor, with time off, on which contributions would be paid as if the hours were overtime.

The Supreme Court confirmed the National Appellate Court’s decision, and stated that the agreement does not contain any irregular terms, does not alter any timetable arrangement or modify the collective labor agreement and does not entail a loss for the workers.

Monetary claim dismissed for overtime only reported by the worker while working remotely

In the case examined in a judgment on March 8, 2022, the Galicia High Court determined whether the worker had worked overtime remotely and whether her overtime work could be substantiated. The Chamber held that her overtime hours had not been substantiated because time was recorded using a system that was turned on and off by the worker, and her overtime hours strangely appeared only when she was working remotely, not when she was working in-person at the workplace. The worker did not produce any proof either that the company required her to be at home outside her timetable to perform her tasks.

Severance amount does not have to be included in letter of dismissal on objective grounds sent to the worker

The Supreme Court reiterated its principle, by recalling that it is not mandatory to specify the exact amount of severance for dismissal on objective grounds. Namely, in a judgment on March 9, 2022, it recalled that the formalities associated with notification of a dismissal on objective grounds are: (i) written notification expressing the ground for dismissal; (ii) notice period; and (iii) making available the statutory severance.

However, the court said, this does not imply an obligation to expressly state the amount made available in respect of statutory severance, especially if we bear mind that it is done simultaneously with delivery of the dismissal letter.

A collective layoff on structural grounds linked to COVID-19 is lawful

The Supreme Court has given its view on application of what is known as the “dismissal ban” under article 2 of Royal Decree-Law 9/2020 to determine that, if the ground for the dismissal is of a structural nature, even if linked to COVID-19, the company can use a dismissal on objective grounds.

In particular, its judgment on April 20, 2022 determines that the company has to substantiate that the reasons underlying the decision to terminate the contract are structural not temporary, which means that a temporary suspension of contracts is not an adequate mechanism for mitigating the effects of the situation. If those arguments are substantiated, the collective layoff is lawful, and the provisions in article 2 of RDL 9/2020 do not apply.

Recording of actual time worked cannot be made subject to authorization by a superior

Examining the time recording system implemented by a company, the Supreme Court has determined in its judgment on April 19, 2022 that it is not credible to make the time recording system conditional on authorization by the company of work over and above the normal working hours.

The Court noted that although overtime must be covenanted as has been found in other judgments, and authorization may be required for working overtime, the company cannot reserve the power to authorize the recording of hours by the worker, because this determines a lack of reliability of the time recording system. It held therefore that the superior’s authorization after the event to ensure that the self-reported time matches the time appearing on the recording system as actual work should be removed.