Spain 2023: Labour Rulings Overview

  • Judgement of the Supreme Court (Sala de lo Social) on January 10, 2023: Delaying salary payment by 10.5 days for one year constitutes grounds for terminating the employment contract.
  • Judgement of the Court of Justice of the European Union on January 12, 2023, Case C-356/21: Refusing to renew or establish a services contract with a self-employed individual based on their sexual orientation violates the prohibition of non-discrimination.
  • Judgement of the Supreme Court, Social Division, on January 18, 2023: The time recording system based on the unilateral declaration of the worker is deemed valid.
  • Order of the High Court of Justice of Catalonia on January 20, 2023, no. 1599/2022: The High Court of Justice of Catalonia has referred a question to the Court of Justice of the European Union for a preliminary ruling on the application of regulations concerning collective dismissals when voluntary retirement occurs between individuals (known as horizontal direct effect).
  • Judgement of the Supreme Court, Social Division, on January 24, 2023: The collective redundancy agreement providing for lower compensation for individuals over 60 years of age is not discriminatory on the grounds of age.
  • Judgement of the High Court of Justice of Catalonia, Social Division, on January 30, 2023: Compensation for unfair dismissal may exceed 33 days when the legal compensation is manifestly insufficient.
  • Judgement of the High Court of Justice of the Balearic Islands on February 12, 2023, No. 68/2023: Termination of an employee without providing a prior hearing is considered unfair dismissal under the standards of Convention 158 of the International Labour Organisation (ILO).
  • Judgement of the Social Court No. 5 of Valladolid on February 13, 2023: Adapting the working day to teleworking or remote work permanently by 100% of the working day is deemed inappropriate as the need for this percentage has not been substantiated.
  • Judgement of the Court of Justice of the European Union (Seventh Chamber) on February 18, 2023, Case C-710/21: In cases of corporate insolvency, the institution competent to guarantee the unpaid wages of a teleworker is that of the country where the company has economic activity.
  • Judgement of the Audiencia Nacional on February 23, 2023, No. 23/2023: In any payroll and audit, the average and median pay of all categories of workers must be determined, even if only workers of one sex are included.
  • Judgement of the Court of Justice of the European Union (Second Chamber) on March 2, 2023: The minimum daily rest period between working days is not part of the weekly rest period but constitutes an independent right with distinct objectives.
  • Ruling of the Supreme Court on March 9, 2023, No. 186/2023: The canteen and cafeteria service is considered an activity of the municipal senior citizens’ centres of the Madrid City Council.
  • Judgement of the Supreme Court (Social Division) on March 14, 2023: In the liability of the State regarding wage processing, the amounts received for working in another company must be deducted.
  • Judgement of the High Court of Justice of the Canary Islands, Social Division, on March 15, 2023: The worker’s testimony is sufficient to prove the occupational contingency of an accident, provided it is credible, persistent, and consistent with other evidence.
  • Judgement of the Supreme Court (Social Division) on March 29, 2023: After the expiration of an extra-statutory agreement establishing a 25-year retention bonus, this right becomes unenforceable.
  • Judgement of the Supreme Court (Social Division) on March 29, 2023: The right to partial retirement, as recognized in the applicable collective agreement, is not enforceable without prior agreement between the parties unless the agreement explicitly imposes it.
  • Judgement of the Supreme Court (Social Division) on April 12, 2023: The probationary period is nullified as its duration refers to the collective agreement, which only specifies a maximum duration.
  • Judgement of the Supreme Court (Social Division) on April 25, 2023: Council members dismissed for disciplinary reasons and contested them, are barred from entering the workplace to exercise representative functions during that period.
  • Judgement of the Supreme Court (Social Division) on April 26, 2023: An annulment of a recognized retirement pension is possible immediately after its notification to apply for it at a later, more favourable time.
  • Judgement of the Supreme Court (Social Division) on April 26, 2023: In the case of childcare leave, there is an unequivocal right to automatic reinstatement, varying in intensity depending on the period of its exercise.
  • Judgement of the High Court of Justice of Madrid (Social Division) on April 26, 2023: It is permissible for the employer to track the search history on the computer provided to the employee when its use was strictly defined as professional.
  • Judgement of the Court of Justice of the European Union (Sixth Chamber) on April 27, 2023: A right to financial compensation exists when annual leave is foregone due to illness.
  • Judgement of the High Court of Justice of Catalonia (Social Division) on May 5, 2023: The right to digital disconnection is not a fundamental right, and its violation does not warrant compensation.
  • Judgement of the Supreme Court (Social Division) on May 24, 2023: When the company lacks full-time vacancies and offers a part-time position to an employee, the employee has the freedom to accept or decline it. In both cases, their right to reinstatement in a full-time position is preserved.
  • Judgement of the Supreme Court (Social Division) on May 25, 2023: Photos taken by a detective of an employee on sick leave working in their garden are deemed unlawful.
  • Judgement of the Audiencia Nacional (Social Court) on May 29, 2023: The company is obligated to provide salary data in situations where there are one or two workers of any gender (irrespective of the workforce of the other gender) and in scenarios where there is no worker of one gender, but there is a worker of the other gender.
  • Judgement of the Audiencia Nacional (Social Division) on June 5, 2023: Time spent by members of the polling station in the employee representatives’ election process is considered working time.
  • Judgement of the Supreme Court (Social Division) on June 7, 2023: Paid leave must be taken on days of actual work, not calendar days, unless otherwise specified by agreement.
  • Judgement of the High Court of Justice of Madrid (Social Division) on June 8, 2023: The nullity of dismissal due to the review of the employee’s WhatsApp messages sent from the company mobile phone is dismissed.
  • Judgement of the Constitutional Court, Second Chamber, 3 July 2023: Disciplinary dismissal based on a violation of the fundamental right to ideological freedom is null and void, even if the cause alleged in the dismissal letter appears justified.
  • Judgement of the Supreme Court, Social Division, 5 July 2023: Objective dismissal is considered fair when the copy of the letter is delivered to the legal representatives of the workers days after its effectiveness.
  • Judgement of the High Court of Justice of Madrid, Social Division, 17 July 2023: The workers’ right to digital disconnection is not violated if they receive an availability bonus.
  • Judgement of the Supreme Court, Social Division, 17 July 2023: A substantial modification of collective working conditions is partially null and void if the insufficient documentation provided refers exclusively to one of the invoked causes, and not to all of them as a whole.
  • Judgement of the Supreme Court, Contentious-Administrative Chamber, 25 July 2023: The reduction for irregular income should be applied to the severance payments of senior managers who are also directors.
  • Judgement of the Court of Justice of the European Union, Second Chamber, 14 September 2023: The systematic denial by the INSS of the maternity supplement to the permanent disability pension to men is discriminatory. Therefore, compensation should be awarded to remedy this discrimination.

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