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Andersen up to date | Employment news | June

| Publications | Employment Law and Social Security

Andersen's Employment team analyses the most interesting regulations and rulings in June


  • The Council of Ministers approved the elimination of the automatic termination of the contract due to the employee’s severe, total or absolute permanent disability. On 21 May 2024, the Council of Ministers approved the reform of Section 49. 1. e) of the Labour Act, establishing the obligation of companies to make reasonable adjustments to enable people with disabilities to exercise their right to work, unless there are justified and proven reasons, such as an excessive burden on the company. This measure is the result of the ruling of the Court of Justice of the European Union dated 18 January 2024.
  • Review of unemployment benefit, the rules of concurrence of collective agreements and the possibility of accumulating breastfeeding leave. Royal Decree-Law 4/2024, of 21st May, has been approved, amending the following labour amendments sought by the repealed Decree-Law 7/2023:

1. Section 37.4 of the Labour Act is amended to complete the transposition of Directive (EU) 2019/1158 on the reconciliation of family and working life for parents and carers. The new wording allows the accumulation of this reduction of work hours in full working days without the need for it to be established in the collective bargaining agreement or for a company agreement to be reached.

2. Section 84 of the Labour Act is modified and, collaterally, also Section 83 of the same legal text, allowing the negotiation of collective bargaining agreements and interprofessional agreements at regional level, which will have priority over any other industry- or state-level collective bargaining agreement.

3. The group of people who are entitled to unemployment benefit is extended, allowing access to those under 45 years of age without family responsibilities, if they have completed a contributory benefit of 360 days and, on the other hand, to those who do not have family responsibilities and can prove that they have paid social security contributions for less than 6 months. The entry into force of these new unemployment benefits will be postponed until 1 November 2024.

  • Eight-week parental leave allowance. Since its entry into force, the 8-week parental leave for the care of children under 8 years of age, regulated in Section 45.1.o) of the Labour Act, has not been paid. However, from 2 August 2024, in compliance with Directive (EU) 2019/11589, at least 2 of these weeks must be paid, without prejudice for Member States to improve this situation. 


  • Judgment of the High Court of Justice (Social Division) no. 502/2024, 22nd March, Rec. no. 11/2022. Companies may not make their employees' variable weekly rest periods coincide with public holidays, whether national, regional or local.

The High Court of Justice has ruled that it is unlawful for companies to make employee’s variable weekly rest periods coincide with national, regional or local public holidays. This decision affects employees who work from Monday to Sunday, including public holidays, who have weekly rest periods that vary, as they suffer an overlap between public holidays and their rest periods.

The High Court of Justice argues that this overlap is contrary to several regulations, including Directive 2003/88/EC and Section 37 of the Labour Act, and should therefore be avoided to comply with the ordinary working day established in the collective bargaining agreement. The ruling emphasises that the time off corresponding to public holidays must be respected, regardless of whether this alters the annual working day, in order to safeguard the right to rest protected in the Spanish Constitution.

Furthermore, the High Court of Justice points out that there is no objective justification for companies to impose variable weekly breaks on public holidays, thus forcing them to adjust their monthly schedules to avoid the coincidence of weekly breaks with public holidays and, in this way, to guarantee employees adequate rest.

  • Judgment of the High Court of Justice of Cantabria (Social Division) no. 248/2024 of 25th March, Rec. no. 95/2024. Fair dismissal of an employee on temporary disability leave.

In the case, the company dismissed an employee who was temporarily incapacitated, based on objective grounds. The Court ruled out the annulment of the dismissal claimed by the employee, as it understood that the motive for the dismissal was not discriminatory.

The employee also requested additional compensation under Sections 158 of the International Labour Organisation and 24 of the European Social Charter, which was denied by the Court based on the following arguments:

1.           The additional compensation cannot be accumulated with the challenge to the dismissal (by virtue of the provisions of section 26 of the Procedural Law), except in cases of violation of fundamental rights that justify the annulment of the dismissal;

2.           Compensation can only be improved by a collective bargaining agreement or an individual agreement, as it is a relative necessary right;

3. There is no rule in Spanish law that allows double compensation, and case law does not admit it, as it is not possible for each judge or court to impose the compensation it deems appropriate;

4.           It is up to the Supreme Court, or the legislator, to decide on the possibility of additional compensation and to establish objective criteria for it, where appropriate.

  • Judgment of the High Court of Justice (Social Division), no. 624/2024 of 29th April, Rec. no. 3824/2022. Permanent seasonal employees whose activity is carried out on uncertain dates and who have simultaneously entered a replacement contract cannot access partial retirement if they have not reached the ordinary retirement age.

In this case, the High Court of Justice has ruled in the same direction as it did a year ago on an identical question. In this respect, Social Security regulations limit the possibility of accessing partial early retirement to those who provide full-time services, so that no distinction is made between part-time and permanent seasonal employees.

However, from a social security perspective, the permanent seasonal contract is assimilated to the part-time contract, since employees do not provide services every day of the year and work less than the ordinary full-time working day for the activity in question.

  • Judgment of the High Court of Justice of Madrid (Social Division), No. 240/2024 of 27th March, Rec. No. 529/2023. Is the death of a remote employee at home considered an occupational accident?

The employee, who was working remotely, suffered an acute myocardial infarction at home at around 3pm. The question which arose was whether the death should be considered an occupational accident, with the legal consequences arising therefrom, both in terms of the surcharge of social security benefits and in respect of the benefits accruing to the deceased employee's family members.

Initially, the High Court of Justice upheld the claim brought by the spouse of the deceased employee, applying the presumption of work-relatedness provided for in social security regulations whereby, in the absence of proof to the contrary, all injuries caused at the time and place of work are considered occupational accidents. Thus, given that the employee worked from home from Monday to Friday, with flexible working hours from 9am to 7pm, with 1 hour lunch break, whose distribution was not clearly determined, it was considered that the death had taken place at the time and place of work.

However, although its ruling is not final, the High Court of Justice has changed the criteria of the lower court, declaring that there is no evidence to establish whether the employee was actually  working, arguing that the flexible working hours and the lack of a detailed time register open the possibility that the death occurred during the employee's rest time.

  • Judgment of the High Court of Justice of Galicia, (Social Division) no. 1491/2024, of 27th March, Rec. No. 5837/2023. Nullity of the objective dismissal due to the ensuing unfitness of an employee on the grounds of discrimination due to illness.

In this case, the High Court of Justice, based on the provisions of Law 15/2022, of 12th July, on equal treatment and non-discrimination, overturns the lower court ruling, which found the dismissal of an employee to be unlawful, and declares it null and void.

The employee, after almost 2 years of temporary incapacity due to a back injury, returned to work and subsequently suffered an occupational accident, giving rise to a new situation of temporary incapacity. Following his return to work, the company required the employee to undergo a medical examination, which found him ‘incapable to perform certain tasks’ and subsequently dismissed him on grounds of supervening incapacity.

The High Court of Justice justifies its decision on the existence of indications of discrimination due to the employee's illness and the absence of evidence to the contrary by the company, which failed to objectively justify the dismissal, in the absence of an adequate report from the health and safety service.

It was therefore concluded that the dismissal lacked real cause and was found null and void, with the consequent reinstatement of the employee with back pay.

Finally, it should be noted that the company was ordered to pay the employee compensation for non-pecuniary damages in the amount of 7,501 euros.

  • Judgment of the High Court of Justice of the Region of Murcia, (Social Division), no. 214/2024, of 20th February, Rec. no. 421/2023. Objective annulment of the termination due to permanent incapacity prior to the entry into force of Royal Decree-Law 4/2024, of 21st May, which eliminates total permanent incapacity, absolute permanent incapacity or severe disability as a cause for termination of the employment contract.

In this case, the employee was found to be permanently and totally disabled (for his usual profession). After receiving the corresponding administrative decision, the company terminated the employment contract without having considered reasonable adjustments that would allow the employee to continue in his post, nor justifying that these adjustments would entail an excessive burden.

By its relevant judgment dated 18h January 2024, the Court of Justice of the European Union underlines that companies must consider reasonable accommodation before dismissing an employee who is permanently incapacitated. Since that ruling, Spanish legislation has had to be adapted and permanent incapacity as an objective cause for termination of the employment contract has disappeared from the Labour Act.

Although the High Court of Justice did not find that the company had harmful intent, the dismissal decision was considered null and void for not having followed the appropriate procedure to avoid the discrimination that had occurred.

Contact Andersen's Employment team:

Victoria Caldevilla, Partner
Germán Martínez, Partner


Open passage for unilaterally adopted equality plans

The Social Division of the Supreme Court has recently handed down a judgement which upholds the possibility of companies adopting equality plans unilaterally under certain exceptional circumstances.

Specifically, this is Judgement no. 545/2024, of 11th April, which analyses the case of a company which, being obliged to implement an equality plan, did not manage to set up the committee responsible for its negotiation, which led it to adopt the equality plan unilaterally.

Going into the details of the case, it is worth highlighting the following facts:

- Firstly, the company lacked employee legal representatives (Works Council), so that the mandatory negotiation of the plan had to take place through a negotiating committee made up of the company's representation and the employees' representation through the most representative trade unions.

- Due to the above and in accordance with the regulation contained in Royal Decree 901/2020, of 13th October, on the registration and deposit of collective bargaining agreements (Section 5.3), the company convened the relevant trade union organisations in order to set up the aforementioned negotiating committee.

Two trade union organisations were involved and for more than a year the company sent numerous communications to each of them to this effect. One of the trade unions never responded to these communications, while the other responded on one occasion, limiting itself to indicating that they could not participate in the negotiations due to the number of requests they were receiving.

- Faced with this situation, the company adopted the equality plan unilaterally, but when the necessary registration was required, in accordance with the provisions of Royal Decree 901/2020, of 13th October (Section 11), the competent labour authority refused it on the grounds that the negotiating committee had not been set up.

- The company challenged the labour authority's refusal, and its claim was upheld in a judgment of the Social Division of the Madrid High Court of Justice. In turn, that judgment was appealed by the Ministry of Labour and Social Economy, giving rise to the Judgment no. 545/2024, of 11th April, of the Social Division of the Supreme Court.

This is not the first time that the Supreme Court has analysed equality plans and the procedure through which they must be adopted. Among others, it is worth highlighting Ruling no. 571/2021 of 25th May, invoked by both the appellant and the respondent in the case that gives rise to this commentary. However, the latter ruling is novel and, of course, of great interest, for the following reasons:

(i) The debate focuses on determining whether it is admissible to register an equality plan drawn up by the company without the participation of the legal representation of the employees (in this case, non-existent) or of the most representative trade unions (absent despite being repeatedly contacted by the company).

(ii) The doctrine previously developed by the Supreme Court did not contemplate a similar case (so specific) and did not refer to the latest legislation on the subject, especially Royal Decree 901/2020, of 13th October.

(iii) In line with the provisions of Ruling 571/2021 of 25th May, only exceptionally could it be accepted that the company establishes an equality plan outside of the legal requirements for this purpose, and it should be considered as provisional.

In this respect, the fact that the ten-day period established in Royal Decree 901/2020, of 13th October (Section 5.3) to respond to the company's call to set up the negotiating committee has passed by far, can reasonably be considered as an ‘exceptional situation’.

 Moreover, the exceptional nature of the case meets the requirements set out in Ruling 571/2021 of 25th May: repeated negotiating deadlock attributable to the counterparty, refusal to negotiate, absence of representative bodies.

(iv) This is not a situation of disagreement in the negotiation between the parties (which could give rise to the use autonomous dispute resolution procedures and bodies). In this case, there is not even a negotiating committee.

(v) The Supreme Court recalls that, unlike collective bargaining agreements (equality plans are a regulatory expression of collective bargaining bargaining), the absence of an agreement in the case of an equality plan determines its non-existence and, consequently, a very serious labour infringement (subject to a financial penalty) and the company's inability to attend certain public calls for tenders.

(vi) Although a provisional register of the equality plan is not possible (the regulations do not provide for different types of registers), the drafting of a plan should be facilitated through genuine negotiation as soon as possible.

In conclusion, I believe that the solution adopted by the Supreme Court is entirely correct and provides a solution to a situation which, unfortunately, has been dragging on for a long time (and I would say that it is getting worse and worse) due to the inability of trade union organisations to meet the demand for negotiating equality plans.

Germán Martínez, Partner

You can download the document here.

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