Transfer of former contractors´ employees to new subcontractor under the applicable collective bargaining agreement. Exemption of liability of new subcontractor on the salary debts of the previous contractor (Judgement of the Supreme Court No.276/2016, 7 April 2016)

This case analyses the liability of the new subcontractor on the salary debts of the previous contractor in the event of a transfer of contractors under the National Collective Bargaining Agreement of Security Companies, ruling that the new subcontractor is exempted from such liability on the basis that this succession on the employees’ contracts is not a transfer of undertaking under article 44 of the Workers’ Statute.

In view of the wording of the collective bargaining agreement, the Court considers that there is no transfer of an organised entity of persons and elements allowing the exercise of an economic activity with its own aim since there is no transfer of material elements. The assumption of employees by the acquiring entity does not correspond to its decision or convenience but to the mandate of the collective bargaining agreement itself. This sets out the obligation of subrogating in the employees of the previous entity by order of article 14, with the requirements and limits which such article sets out, specifically, without assuming the debts of the previous contractor. The Court understands that, when the legal requirements are not met, the subrogation may take place by order of the collective bargaining agreement and, in such cases, the regime set out in the law does not apply but it is superseded by that set out in the collective bargaining agreement with the requirements and consequences of the clause of the applicable collective bargaining agreement. Therefore the subrogation will only apply if the requirements set out in the collective bargaining agreement are met and will have the effects established thereof.  In this case, the provision of the collective bargaining agreement by which the company which ceases in the service should be liable, as unique and exclusive obliged party, of the payments and quotes resulting from the rendering of services up to the moment of the cessation of the contract, makes - as well as the length of time spent rendering services– a constitutive requirement of the conventional subrogation which determines that the new subcontractor is not responsible for the salary debts owed by the former subcontractor before the subrogation.

Moral damages due to change of position to employees during a strike (Judgment of the Supreme Court No.78/2015, of 18 March)

The Labour and Social Security Inspectorate issued a report indicating that they have noted the existence of replacement of striking employees in several work centres of the province by other employees of the same or different work centres and furthermore the replacement of striking employees by employees of the same work centres of different professional categories. The company alleged that, in any case, the strike had pressurised it into reaching an agreement. However, the Court considers that the fact that finally the parties reached an agreement does not mean that the company behaviour was correct or that it did not breach the strikers' rights, but only that it has not been successful in its objectives. These are different things, because such reproachable behaviour has anyway taken place and other judgments qualify it as internal strikebreaking (“esquirolaje interno”). The Court recalls that in a legal strike’s context the “ius variandi” of the employer cannot extend to the replacement of striking employees by employees who, in ordinary situations, do not have such functions entrusted to them since it would annul or reduce the pressure legitimately carried out by the striking employees. For such reason, it maintains the imposition made by the lower court of awarding compensation for moral damages to the trade union which has been in the position of being forced to take the relevant legal action before the courts while simultaneously maintaining the debate with the ordinary activity of the company.

Calculation of length of service for severance purposes in case of succession of temporary contracts (Judgment of the Supreme Court No. 1423/2014, of 23 February)

In this case, there had been a breach in the services of two months and eight calendar days after a contractual record since November 2005 and which, up to the moment of cessation in March 2009, has maintained an admissible continuity link even assuming an interval of 29 days between the first and second contracts and that four contracts were subscribed.

The Court analyses whether the break in the labour link for such periods is valid or it could be considered that there has been a continued rendering of services for the purposes of calculation of an unfair dismissal severance. The Court understands that each case should be analysed individually, since the willingness of the employee may be vitiated by the company’s offer of entering into a new contract in the near future. The Court maintains that the theory of the link-unity for length-of-service purposes is not broken by the mere signature of receipts of liquidation of outstanding salaries (“finiquito”) between the successive contracts entered either with short interruptions or when interruptions coincide with a holiday period.

Furthermore, the Court sets out that it has not been proven that the use of temporary contracts was justified, which linked to the fact that the employee has continuous service with the same company– regardless of the different formal appearance–and in the same professional category, leads to conclude that there has not been a break of the employment link for the purposes of calculating the unfair dismissal severance.

Fairness of the dismissal of an employee who put pressure on the company for it to “arrange his access to unemployment benefits” (Judgment of the Superior Court of Catalonia No. 710/2016, of 18 February 2016)

The Court analyses the fairness of a dismissal based on the breach of contractual good faith by the employee. Particularly, the dismissed employee asked the company twice to implement a termination which enabled him to collect unemployment benefits due to the fact that he wished to leave the company, but did not want to voluntary resign. After the company declined such requests, the employee started to reduce his normal work performance and started a period of sick leave due to unspecific anxiety disorder. The Court considers that, although the termination letter does not expressly include reference to the two requests made by the employee (and the refusal of the company to participate in a fraud) these are facts that have been proven and do not have purposes other than showing the dissatisfaction of the employee and forcing the company to dismiss him. This constitutes an evident breach of contractual good faith due to the breach of the loyalty duty, the lack of ethical values leading to the ruling of the termination as a fair dismissal.

Payment of overtime hours rendered in teleworking (Judgment of the Superior Court of Castilla y León (Valladolid) No. 198/2016, of 3 February 2016)

Particularly, the issue in question is the concept of overtime where the employee carries out part of his job remotely from his home address using IT systems (emails, conference calls, drafting of documents and reports and delivery of reports by electronic means). The company indicated that the home is a space protected by the right to privacy (article 18 of the Constitution) and the company cannot control work rendered by the employee at his domicile, so that if the employee works overtime, that is his exclusive decision and it is the employees’ responsibility which may not economically influence the company by requesting the payment.

The Court considers that the company’s interpretation is wrong due to the following reasons: (i) the time of work at home is exactly the same to that rendered at the Company’s work centre; (ii) the control of working time is the company’s responsibility; (iii) the respect to the limits of working hours and resting periods are part of the right of the employee to the protection of his safety and health (Directive 2003/88/CE) which is the employer’s responsibility. Although the employee works from home, the company should set out the indications regarding working time to guarantee the compliance with limits of working hours and resting periods; (iv) the right to privacy and inviolability of the domicile are rights of the employee who lives there and not of the company, therefore such rights cannot be alleged by the company against the employee. If a company sets out rules regarding working hours and control tools, the employee may refuse them. Furthermore, work with an internet connection entails a control of the remote work carried out (checking the connection to internet) and does not entail, in normal conditions, an invasion of the space protected under the concept of home; and (v) only if the company has established criteria on working time under the legal regulations regarding working hours and resting periods and tools to report and control remote work, would it be possible that an employee’s action breaching such indications and control tools may result in an exception to the payment of overtime. In the absence of such indications and criteria and in the absence of minimum control tools, such an exception cannot be sustained.