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Andersen Employment Brief | October 2022

| Publications | Employment Law and Social Security

Andersen's Employment team analyses the most relevant legilation and judgemnts in October's brief. In it, Raquel de la Viña, delves into the comment of the month on "The shocking volatility of permanent seasonal employment contract"

Insolvency Reform. - Law 16/2022, of 5 September 2022. This law amends the consolidated text of the Insolvency Act, approved by Royal Legislative Decree 1/2020, implementing the Directive (EU) 2019/1023 on preventive restructuring frameworks, debt waivers and disqualifications, and on measures to increase the efficiency of restructuring, insolvency and debt waiver procedures, which modifies the Directive (EU) 2017/1132 on certain aspects of corporate law (Restructuring and Insolvency Directive).

Work Harassment as a New Offense of Legal entities. - Organic Law 10/2022, of 6 September 2022. This law promotes the prevention of sexual violence and guarantees the rights of all victims. It also develops the right to reparation as one of the central elements of institutional responsibility to achieve the full recovery of victims and to guarantee the non-repetition of violence.

Household Employees. - Royal Decree-Law 16/2022, of 6 September 2022. This regulation equalizes the employment and social security conditions of household employees to those of other employees.

Insolvency Proceedings. - Resolution of the General Secretary of the Wage Guarantee Fund of 23 September 2022This resolution approves the certification model of labor credits included in the list of creditors in insolvency proceedings, which must be included with the application for wage guarantee benefits regulated in Section 33 of the Labor Act.


USE OF DIGITAL MEDIA AT WORK. Judgment of the National High Court (Labor Section) no. 114/2022, of 22 July 2022, Appeal no. 178/2022. The plaintiffs request the full revocation of the new policy on the use of email, Internet and information storage on hard drives of company equipment made available to employees, as well as the connection to computers in the office when working remotely, in order to monitor in real time the activity of the employees at any giving time.

This petition is based on the fact that the aforementioned policy is against the regulations that had been applied to the employees up to that time, and that it had not been negotiated with the employee representatives. In addition, the plaintiffs request the court to rule that it is necessary to initiate a negotiation period with the employee representatives in order to comply with Section 87.3 RGPD (concerning the right to privacy and the use of digital devices at the workplace), and thus reach an agreement on criteria that respect, in all cases, the minimum privacy protection standards in accordance with social practices and the constitutional and legal rights.

The instructions on the use of computer equipment and corporate email communicated to the employees are considered null and void, as the employee representatives did not participate in the drafting of said instructions. To this end, it is irrelevant that employment contracts specify that digital devices must only be used for professional purposes.

VIDEO SURVEILLANCE AND HOUSEHOLD EMPLOYEES. Judgment of the Supreme Court (Labor Section) no. 692/2022 of 22 July 2022, Appeal no. 701/2021. To install a hidden camera that only shows the wardrobe where a safe is located is considered suitable, proportional, and necessary evidence by the employer to justify the dismissal of a household employee who had stolen significant amounts of money and other valuables at the home where she provided her services.

The Court takes into consideration the great vulnerability of the employer and the lack of any alternative measures that would have made it possible to achieve this legitimate purpose.

STATUTE OF LIMITATION OF ACTIONS DERIVED FROM FUNDAMENTAL RIGHTS. TERM AND INITIAL DAY - Judgment of the High Court of Justice of Madrid (Labor Section) no. 790/2022, of 23 September 2022, Appeal no. 716/2022. Although fundamental rights are not subject to a statute of limitations, specific actions granted for their defense are. The term is one (1) year from the date on which the action could have been taken, i.e. from the date on which the infringing act came to knowledge or when the infringement was actually committed.

NULL AND VOID DISMISSAL OF A HOUSEHOLD EMPLOYEE DUE TO PREGNANCY. - Judgment of the High Court of Justice of Andalusia (Labor Section) no. 2108/2022 of 14 July 2022, Appeal no. 3140/2020. The Court finds that it is impossible to replace mandatory reinstatement with severance compensation, even where there is an agreement between the parties, given that the protection of fundamental rights, violated as a result of the dismissal, prevails over such an agreement.

The judgment expressly points out that the so-called “household service” is part of the market economy and that household employers must be considered employers for all purposes, and states that it cannot agree with “(…) the fallacy of the preamble of the law (…)”.

BREASTFEEDING, PARENTAL EQUALITY. - Judgment of the Supreme Court (Labor Section) no. 646/2022 of 12 July 2022, Appeal no. 1367/2019. The purpose of breastfeeding leave makes the sex of the person taking it irrelevant. The general objective of co-responsibility for family tasks requires an interpretation that is favorable to the indifferent exercise of this right.

This idea clashes with the grounds of the contradictory judgement, according to which the mother (being unemployed) can take care of the child, and the father does not need to take this leave.

Key Contact Andersen Employment Law

Victoria Caldevilla, Partner at Andersen

Germán Martínez, Partner at Andersen



The permanent seasonal employment contract has been the "King" contract of the Labor Reform. However, after a few months, reality is forcing a change of name to the "King of Volatility", as we will see below.

The figures show that, despite the upturn in permanent employment contracts (which now represent approximately 40% of new contracts), the number of permanent seasonal employee who cease to perform their services has shot up by 415%. This means that it is the number one reason of an employee’s deregistration with the Social Security system, even higher than resignations and voluntary departures. In addition, the number of resignations among permanent seasonal employees has also risen, in contrast to the situation prior to the Labor Reform, where the highest number of resignations was concentrated in temporary employment contracts.

This volatility is also found in the increased use of the termination of permanent seasonal contracts during the probationary period, which, in some cases, is a clear case of de facto hiring of temporary employees without compensation. This figure is devastating given that this type of situation has increased by 587% since August 2019.

All of the above is complemented by the irregularities being detected by the Labor Inspection, which launched in May 2022 a specific campaign and a contingency plan against fraud in the hiring of permanent seasonal employees. The major problem being faced is the use of this type of contract in situations that are not seasonal in nature (except for the use that is allowed in the framework of successive outsourcing). One of the clues that is easy to detect is the continuity of the “calls” to employees between periods of inactivity, which are made on a very continuous or interrupted basis, as well as periods of inactivity that coincide with regular break periods, such as school holidays.

This volatility is strongly influenced by the new insecurity of employment that this type of contract entails, together with part-time employment contracts, which generate even lower ties with the company than temporary contracts. Moreover, there is a lack of adequate advice on this type of hiring, which leads to significant damage in the form of substantial fines. All this taking into account the context of inflation and currency depreciation that we are experiencing, which further complicates the situation.

Raquel de la Viña, Director at Andersen in the Employment Law department.

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