Spanish employment newsletter - December 2019

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I. International Case Law

The use of secret video surveillance can be regarded as proportionate

The European Court of Human Rights has re-examined the question whether the installation of hidden cameras in a workplace infringes employees’ fundamental rights, in a case when the video images were used as evidence to dismiss employees.

In this case, it is important to highlight three facts: (i) the company informed the employees of the existence of visible cameras but not of hidden cameras; (ii) the hidden cameras pointed out to areas of the workplace where there was little privacy anyway (the checkout area of a supermarket). In addition, they were installed for just 10 days and the viewing was carried out by a small number of people; and, (iii) the company installed the hidden cameras when it had indications that employees were committing labor and criminal offences.

The Court ruled that the use of hidden cameras is lawful since the employer's interest was to safeguard the company’s assets and it was a proportionate measure because:

(i) the degree of interference in the employees’ private life was minimal;

(ii) there was a reasonable suspicion of criminal and labor offences;

(iii) hidden cameras were the only appropriate means to reach the objective pursued;

(iv) the cameras were only used for the intended purpose and the fact that the employees were not previously informed about their installation is justified by the reasonable suspicions that existed.

Therefore, the employer is entitled to install hidden cameras, provided that the requirements listed above are met. Those requirements fulfil those already highlighted by Spanish case law, which consist in the compliance with the triple judgment: necessity, suitability and proportionality.

II. National Case Law

1. Termination of an Employment Contract

Absenteeism: justified and intermittent absences can be a reason for terminations.

The Constitutional Court, in its judgement dated October 16, 2019, endorses one of the statements set forth under the 2012 Labour Reform against absenteeism and reiterates that the costs suffered by companies as a consequence of this situation should prevail over the absences caused by short-term temporary leaves, even if justified.

As a result, the Constitutional Court confirms the fairness of an objective dismissal of an employee who was absent for nine working days in two consecutive months, exceeding the absenteeism thresholds established by article 52 of the Workers’ Statute.

The Court considers that the cause of the termination is not the sickness of the employee, but the justified absences. However, since the above-mentioned article of the Workers Statute excludes “absences due to medical treatment of cancer or serious illness”, it is necessary to assess what must be understood as a serious illness.

Following the European Court of Justice, which has distinguished between short and long-term sickness (without providing a clear definition of each of them), the Spanish Constitutional Court has applied such a differential, concluding that employees cannot be terminated by justified and intermittent absences when they are on long-term sickness leaves (more than 20 consecutive calendar days).

The above mentioned argument, together with the judgement by the Spanish Constitutional Court, may lead  to a conclusion that a company may terminate an employee on sickness leave for justified and intermittent absences provided that the sickness leave will not exceed 20 consecutive calendar days and the thresholds stated under article 52 of the Workers Statute are reached.

However, dismissal without cause of an employee who is on long-term sickness leave might be declared by a court an unfair termination or discriminatory because there is no legal cause to terminate the worker.

This uncertainty is increased because there is an informal proposal that could be enacted related to the 2012 employment law reform which is designed to prevent the terminations of employees for justified absences being declared fair.

2. Transfer Undertakings

Risks of unfair termination in a collective dismissal proceeding where there is a transfer of undertakings

The Supreme Court has stated in a recent ruling that a company cannot carry out a collective dismissal proceeding based on the termination of an outsourcing services contract, even if it constitutes the only business activity that the company held.

The Spanish High Court argues that the applicable collective bargaining agreement states that in these cases the employees must be automatically transferred to the new company that will develop the same outsourced services. Therefore, the company should have transferred the employees to the new company. For this reason, the Spanish Supreme Court declared that the termination cause argued in the collective dismissal proceeding is unfair.

The immediate consequence is that the company had to pay to the employees the severance compensation for unfair dismissals instead of having saved the said cost if it had transferred the employees as stated in the provisions of the collective agreement.

3. Labour Inspection

Sanctioning a company for not allowing the labour inspectorate to carry out its functions

A company has been fined €62,503 for obstructing a labour inspection's investigation. The sanction was imposed for the company's failure to allow the inspectorate to remain in the workplace, to properly take statements from employees and to carry out the appropriate procedures. Although the Labor Inspectorate could have asked for police intervention, it decided not to do so because it could harm the  people in the work center (a nursing home).

Obviously, the investigations carried out by the Labour Inspectorate should never be hindered by a company's actions. Therefore, and in order to avoid incidents that could have harmful effects on companies, it is advisable to implement action protocols together with training sessions for employees. These protocols and training should provide guidelines for employees and managers to develop a policy of cooperation and collaboration with the Labor Inspectorate in the event of a visit by the latter to the workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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