I.- LEGISLATION

• Statute of the artist. – Resolution of 24 January 2023 of the Spanish Parliament, which validates Royal Decree-Law 1/2023, of 10 January, on urgent measures on incentives for employment contracts and improvement of the social protection of artists. The development of the Artist's Statute is one of the reforms included in element 24 of the Recovery, Transformation and Resilience Plan, aimed at revaluing the cultural industry. The purpose of this reform is to adapt the legal, fiscal and labor framework of the cultural sector in order to improve the social protection of agents in this sector.
• Criminal Code. – Organic Law 14/2022, of 22 December, which transposes European directives and other provisions for the adaptation of criminal legislation to the European Union regulations, and reforms crimes against moral integrity, public disorder and smuggling of dual-use weapons. Section 311 of the Criminal Code is amended to add a new paragraph that punishes those who impose illegal conditions on employees by hiring them under formulas other than employment contracts, or maintain such conditions in breach of an administrative requirement or fine.
• New employment-related developments included in the General State Budget 2023. – Following the entry into force, on 1 January 2023, of Law 31/2022, of 23 December, on the General State Budget for 2023, the following development should be pointed out:
• New social security contribution system for self-employed workers. – Royal Decree-Law 13/2022, of 26 July, which establishes a new contribution system for self-employed workers and improves protection in the event of ceasing activity. Self-employed workers will have the possibility of adapting their contribution to the income forecasts for each period of the year and their professional activity.
• Ban on contracting in the Public Sector. – Section 71.1.d) of the Public Sector Procurement Act is amended, prohibiting the Public Administration from contracting with companies with 50 or more employees that do not have an equality plan, thus reducing the previous threshold, which applied to companies with more than 250 employees.
• Minimum professional wage 2023. – The minimum professional wage for 2022 is extended until the Royal Decree is approved to establish the minimum wage for 2023, which the Government has already announced will be €1,080 per month in 14 instalments.
• Intergenerational equity mechanism. – From 2023 until 2032, both companies and employees will have an additional Social Security contribution of 0.6% (0.5% paid by the company and 0.1% paid by the employee) on the contribution basis for common contingencies, corresponding to the so-called "Intergenerational Equity Mechanism" to strengthen the retirement pension system in the long term with the coming retirement of the "baby boom" generation.
• Contributory unemployment benefit. – This benefit is increased from 50% to 60% of the regulatory basis as of the 181st day of payment.
• Amendments to the General Social Security Law. – Order PCM/74/2023, of 30 January, which develops the legal rules on Social Security contributions, unemployment, protection for termination of activity, the Wage Guarantee Fund and professional training for the financial year 2023. The amendments to the General Social Security Law are published in the Spanish Official Gazette, with effect from 1 January 2023.
• Partial retirement. – Royal Decree-Law 20/2022, of 27 December, on measures in response to the economic and social consequences of the war in Ukraine and support for the reconstruction of the island of La Palma and other vulnerability situations. The replacement contract in the manufacturing industry is extended until 31 December 2023.
• Sick leave certificates. – Order ISM/2/2023, of 11 January, amending Order ESS/1187/2015, of 15 June, which implements Royal Decree 625/2014, of 18 July, regulating certain aspects of the management and control of temporary sick leaves during the initial 365 days of their term. From 1 April 2023, the obligation for the employee to provide the company with the medical certificates of sick leave, confirmation and medical discharge will be eliminated; instead, these certificates will be processed electronically by the administration and the company.

II.- RELEVANT JUDGMENTS

• Work related accident in the context of homeworking. – Judgment of the High Court of Justice of Madrid (Labor Section), no. 980/2022, of 11 November 2022, Rec. 526/2022. The accident an employee suffered in the kitchen at his home, when he dropped a bottle of water during his working day, is considered a work related accident.

The judgment points out that the place in which a person works retomely is not a closed and isolated space. In this regard, the judgment adds that the workplace cannot be limited exclusively to a desk, a chair and a computer in the private home. For this reason, the Court states that drinking water in the kitchen during the working day is not an activity outside of working life, and rules that in this case the sick leave derives from work related accident.

• Digital disconnection in the workplace. – Judgment of the High Court of Justice of Galicia (Labor Section) nº 8117/2022, of 23 November 2022, Rec. 4175/2022. The fact that an employee has received calls and messages through the Whatsapp application and the group of employees created in this application, during non-working hours, is not considered to be a violation of the right to digital disconnection.

Although in this case there are only five communications over a period of 15 months, the judgment does not consider the frequency of these communications to be so important as the content and context of the communications. Specifically, in the case at hand it was proven that the WhatsApp group operated separately from the employee's working hours, as it included other colleagues with different working hours. In addition, although there is evidence that questions were made to the employee or that occasionally some inappropriate behavior could be observed, the Court finds that there is no request for an immediate response, no order to stay connected or an obligation to remain a member of the group.

In short, a violation of the right to digital disconnection has not been proven, as the company did not penalize, warn or remind the employee to immediately respond to the communications received through the Whatsapp group.

• Null and void dismissal of employees on temporary sick leave as a result of Law 15/2022

Although there is no clear case law on this matter, it is essential to examine two Social Courts’ rulings  following Law 15/2022 on equal treatment and non-discrimination, which came into force on 12 July 2022.

• Judgment of the Social Court of Gijón nº 6161/2022, of 15 November 2022

The court rules that the unjustified termination of an employee on the same day she went on sick leave due to a surgery she was about to undergo due to her illness (which she had already communicated to the company), is null and void

The judgement states that there are indications that the dismissal was related to the employee’s illness (and surgery), and this is proven by means of a WhatsApp conversation between the employee and the employer’s son, in which it is indicated that the company could not bear the cost of the sick leave, and that the employee would be rehired when she recovers, as they were "happy" with her performance. This was followed by a disciplinary termination without cause, which the Court considers to be a null and void dismissal.

• Judgment of the Social Court of Vigo no. 473/2022, of 13 December 2022

The termination of an employee's contract following a sick leave is considered null and void. However, the Court applies the aforementioned rule despite the fact that the termination took place prior to Law 15/2022 came into force.

• Accumulation of paternity leave in single-parent families. – Judgment of the High Court of Justice of the Canary Islands, 27 January 2023. Although the full text of the ruling is not yet available, the Spanish General Judicial Council has issued a statement announcing that the Court has rejected the accumulation of paternity leave in a single-parent family, overturning a lower court judgment that extended paternity leave to 26 weeks for a woman who decided to raise her child alone, maintaining the leave at 16 weeks.

The Court recognizes the existence of a situation of need and risk in single-parent families, but recalls that it is not up to judges and courts to grant economic leave rights nor to act beyond the legal regulation that is given to the legislative authority.

• Labour inspectorate and working day register. – Judgment of the Supreme Court (Labor Section) no. 85/2023, of 18 January 2023, Rec. 78/2021. The Supreme Court rules on the way in which companies must record the working day of their employees, an employment duty that has not been applied peacefully by Spanish labor courts, but which become important in view of the intense activity of the Labor Inspectorate in this area.

The European Court of Justice has already ruled on these matters (Judgment dated 14 May 2019 C-55/2018), providing that time recording must be "objective", "reliable" and "accessible", and that time recording based on the unilateral declaration of the employee was not a valid mechanism for time recording. However, the Supreme Court argues that this reasoning lacks legal justification, insofar as the objectivity and reliability of a working time record system cannot be denied simply because it requires the employee himself/herself to record the start and end times of his/her daily working day, as well as rest periods and other interruptions which are not considered to be actual working time.

In fact, this judgment further provides that it is rather the opposite, arguing that it is difficult to imagine a time recording system that does not require the employee to carry out a certain activity in order to record any possible interruption of work activity.

Consequently, the Supreme Court establishes that, in this specific case, the fact that it is the employee himself/ herself who must enter the required data into the computer application provided by the company does not make it any different from any other possible valid working time record system which also requires the employee himself/herself to activate it.

• Wrongful gain of the employee in post-contractual non-compete covenant. – Judgment of the High Court of Justice of Madrid (Labor Section) no. 13348/2022, 25 November 2022, Rec. 576/2022. The judgment provides that, although the employee started to work for a competing company after the employment relationship ended, her obligation not to compete had not been adequately compensated through the post-contractual non-compete covenant, given that compensation she had received only represented 12.5% of her annual salary, thus making this covenant null and void and the employee had to reimburse such compensation.

Accordingly, the judgment states that, even if the compensation for the non-competition obligation is not sufficient, and this implies that the post-contractual non-compete covenant is null and void, the employee must, in such a case, return the full amount that the company paid him/her as compensation, otherwise the worker would be unfairly compensated.

Key Contact Andersen Employment Law

Victoria Caldevilla, Partner at Andersen

Germán Martínez, Partner at Andersen

III.- COMMENT OF THE MONTH

New offences of the corporate entities: we have duties

At the beginning of 2023, a brief comment to evaluate some of the new developments that we have come accross and will have to manage during this year.

Among the latest regulations, the new regulation contained in Law 15/2022 of 12 July, comprehensive for equal treatment and non-discrimination, which, with good intentions, places companies in situations that are difficult to manage and prevent.

Section 6, entitled "Definitions", sets out the following ones:

1. Direct and indirect discrimination: where an apparently neutral provision, criterion or practice causes or is likely to cause one or more persons a particular disadvantage compared with others on the basis of the discriminatory grounds provided for in the law.
2. Discrimination by association: when a person or group of which he or she is a member, by reason of his or her relationship with another person or group of which any of the grounds for discrimination apply, is treated in a discriminatory manner, and discrimination by mistake, which is based on an incorrect perception of the characteristics of the person or persons being discriminated.
3. Multiple discrimination: when a person is subject to simultaneous or consecutive discrimination on two or more grounds, and intersectional discrimination when several of the grounds provided for in the law concur or interact, giving rise to a specific form of discrimination.
4. Discriminatory harassment: for the purposes of this law, harassment is any conduct carried out on the basis of any of the grounds for discrimination set out in the law, with the aim or the consequence of violating the dignity of a person or group of which he or she is a member and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
5. Induction, command or instruction to discriminate.
6. Retaliation, meaning any adverse treatment or negative consequence that a person or group of which he or she is a member may suffer for intervening, participating or collaborating in an administrative procedure or judicial process aimed at preventing or ending a discriminatory situation, or for having filed a complaint, claim, report, lawsuit or appeal of any kind with the same purpose.

All of the above, like the 10 Commandments, boils down to the finding of harassment at work, and harassment at work is considered a crime of the legal entity, as established by Organic Law 10/2022 of 6 September on the comprehensive guarantee of sexual freedom, which also modifies the Criminal Code, although a series of requirements must be met.

Specifically, Section 173.1 of the Criminal Code establishes that anyone who, in the context of any employment or civil servant relationship and taking advantage of their relationship of superiority, repeatedly performs hostile or humiliating acts against another person which, without constituting degrading treatment, constitute serious harassment of the victim, shall be punished with a prison sentence of 6 months to 2 years.

Furthermore, Section 31 bis of the Criminal Code establishes that legal entities are criminally liable:

a) for offences committed in the name or on behalf of and for the direct or indirect benefit of the legal entity through its legal representatives or by those who, acting individually or as members of an organ of the legal entity, are authorized to take decisions on behalf of the legal entiyty or have powers of organization and control within the legal person.

(….)

2. If the offence is committed by the persons referred to in point (a) of the previous paragraph, the legal person shall be exempted from liability if the following conditions are fulfilled:

1.º the management body has adopted and effectively implemented, prior to the commission of the offence, organizational and management models that include the appropriate supervision and control measures to prevent offences of the same nature or to significantly reduce the risk of their commission;

2.º the supervision of the functioning and compliance of the prevention model in place has been entrusted to an organ of the legal entity with autonomous powers of initiative and control or which is legally entrusted with the function of supervising the effectiveness of the legal entity's internal controls;

3.º the individual perpetrators have committed the offence by fraudulently circumventing the organisational and preventive models, and

4.º there has been no omission or insufficient exercise of its supervisory, monitoring and control functions by the body referred to in the second condition.

In our experience, and on most occasions, complaints of harassment and/or discrimination go directly to court, which makes it necessary to prove that internal procedures are adequate to prevent such behavior, and that they work in practice. In other words, it is not enough to have a great prevention procedure on paper if it is not applied in practice and the judges detect it.

In the end, it is a matter of explaining to potential defendants on behalf of the legal entity that they have to go to a court of law because there is a complaint of discrimination or harassment at the workplace. BEWARE of these situations.

In short, the company's existing harassment and compliance protocols must be reviewed to bring them into line.

Victoria Caldevilla, Partner at Andersen