Labor Newsletter - November 2021 | Judgments

The Supreme Court admits the validity of security camera recordings even during rest time

In the case analyzed by the judgment of October 13, 2021, the company dismissed a bus driver because, among other breaches, he allowed some passengers to enter without the corresponding ticket and smoked inside the bus. Part of the breaches were committed during the worker's rest time, between the different scheduled routes.

The High Court of Justice of Galicia had determined the nullity of the evidence (and of the dismissal) for breach of the employer's duty to provide information, although it acknowledged that there were signs on the bus warning of the existence of cameras with the following phrase: "for the safety of the drivers".

For its part, the High Court states that the installation of these security cameras passes the triple test of proportionality because: (i) their presence is justified for safety reasons; (ii) it is suitable for the proposed purpose since it allows detecting possible infringements; (iii) it is necessary due to the inexistence of other means to prove non-compliance; and (iv) it is proportionate because the data obtained has been used for purposes of labor control.

The recording obtained by the cameras installed in the vehicle, including rest periods, is admitted since it is considered that during this time it is also possible to commit serious and culpable non-compliance while inside the bus.

Companies are not obliged to carry out COVID-19 screening tests on workers

The Supreme Court, in a ruling dated May 20, 2021, has declared that a company cannot be required to carry out COVID-19 tests on workers, in the absence of a legal regulation that so provides.

The case under analysis deals with the obligation to carry out a Covid-19 screening test for workers with the category of medical transport technician, due to the evident risk of exposure to direct or indirect contact with affected persons by ambulance personnel. The court determined that the company had complied with its risk prevention obligations and dismissed the lawsuit since there were no regulations in force that could require the company to carry out a COVID-19 detection test in the terms claimed by the plaintiffs. 

Compulsory professional training is considered as working time

A recent judgment of the CJEU of 28 October 2021 establishes that professional training imposed by the employer pursuant to Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 is considered as working time.

According to the CJEU, Article 2 of the Directive must be interpreted as meaning that the period during which an employee undergoes professional training imposed on him by his employer and which takes place away from his normal place of work, on the premises of the provider of the training services, and during which he does not perform his normal duties, constitutes working time.

The determining factor in reaching this conclusion is that the employee, during the training period, is at the disposal of the employer.

The Supreme Court declares the invalidity of a post-contractual non-competition agreement with a compensation of 35 euros per month

The Supreme Court, in its recent judgment of October 18, 2021, has determined that a two-year post-contractual non-competition agreement which was compensated only with 35 euros per month (1.76% of the monthly salary) is invalid. The contract stipulated that, in the event of breach of this non-competition agreement, the employee would be obliged to pay the company an indemnity equivalent to the last 6 months of salary.

The High Court concludes that such agreement is not in accordance with the law taking into consideration: (i) the period of duration (2 years); (ii) the meager amount paid; and (iii) the disproportion between the amount received and the sum that the employee would have to pay the company in case of breach.

The acknowledgement of the facts by the employee in the contradictory proceedings does not imply that the company has effective knowledge for the purposes of the prescription period

The High Court, in its ruling of October 13, 2021, determines that the acknowledgment of the facts made by the worker in the contradictory proceedings does not necessarily imply the existence of full and accurate corporate knowledge of the facts imputed and, therefore, should not be counted as the beginning of prescription period for labor misconduct. 

Specifically, the decision is based mainly on the fact that the acknowledgment can be denied or qualified by the employee and that it is made during the processing of the file, which does not have to imply that the corresponding verifications are not carried out. In this case, the court upheld the appeal, declaring that the offenses were not time-barred as a result of the aforementioned acknowledgment.

The non-exceeding of the probationary period can be counted for the purposes of collective dismissal thresholds if there has been an abusive or antisocial use of the right

In the case analyzed by the Supreme Court, the company carried out a large number of terminations in the period between March 16 and April 3, 2020. Specifically: (i) it terminated 6 temporary contracts ante tempus; (ii) it communicated the non-exceeding of the probationary period to 25 workers; and (iii) it disciplinarily dismissed 34 workers due to diminished performance. Subsequently, on April 6, 2020, it filed an ERTE due to force majeure arising from the healthcare crisis.

The High Court considers that the 25 non-exceeding of the probationary period and the early termination of the six temporary contracts must be computed for the purposes of collective dismissal thresholds because, in light of the factual circumstances, it considers that the company has made an abusive or antisocial use of the right. Consequently, the nullity of the terminations carried out as determined by the High Court of Justice of the Basque Country is confirmed.