Legislative and Jurisprudential Updates

legislative and jurisprudential

1. JURISPRUDENCE

1.1 Existence of an employment relationship between the delivery drivers and the Company Deliveroo

Judgment of the Superior Court of Justice of Aragón, Social Chamber, of 29 March 2021 (Rec. 128/2021)

The Social Chamber of the Superior Court of Justice (the “SCJ”) of Aragón dismisses the appeal filed by the Company Roofoods Spain, S.L. (the trade name of which is “Deliveroo”) against the judgment issued by the Social Court (the “SC”) num. 2 of Zaragoza, after being filed ex officio by the General Treasury of the Social Security (the “GTSS”), which claimed that the existence of an employment relationship between the delivery drivers and the Company should be declared.

The judgment upholds the decision of the SC and concludes that there was an employment relationship between the Company and the employees rather than a commercial one.

In order to reach such conclusion, the SCJ of Aragón uses the arguments set out in the recent judgment of the Supreme Court, Plenary, dated 25 September 2020 (Rec. 4746/19) which, in a similar case (Glovo delivery drivers) establishes the legal concept of “employee” and applies it to delivery drivers of digital platforms.

The Supreme Court adds that dependence is manifested though the integration of the employees into the company’s organization, and that the dependence is produced when the economic benefit derived from the provision of services enters directly into the company’s asset and no into the employees’, and them receive a salary in the modality of per unit of work.

Applying this doctrine, the judges considered that the delivery drivers, through their work, did not participate in the organizational structure of the delivery activity, nor in the managerial part referring to the selection of catering companies and customers who would receive their products.

The judgment of the SCJ of Aragón appreciates the concurrence of the notes of the common labor employment relationship and confirms the decision of the SC, considering that the very nature of the service provided requires an organizational complexity that completely escapes from their area of decision. Likewise, the judgement emphasizes that Deliveroo paid such delivery drivers in a fixed amount per unit of time, since they did not personally promote or arrange any commercial relationship with providers or customers, but it was the Company who directly managed the service provided.

1.2. Declaration of unfair dismissal in spite of the prohibition of dismissal

Judgment of the Superior Court of Justice of Catalonia, Social Chamber, of 31 March 2021 (Rec. 3825/2020)

The judgment analyzes the consequences of failing to comply with the prohibition of dismissal imposed by RDL 9/2020, discussing whether a dismissal in these circumstances should be declared null and void or unfair. The relevance is such that the appeal was analyzed by the Plenary of the Social Chamber (a circumstance reserved for matters of special interest and importance). The judgment contains a majority vote and several dissenting opinions.

The majority decision considers that, under the current labor legislation, and after analyzing both national and international case law, confirms that there is no obligation to declare the nullity of the dismissal due to lack of real cause. Thus, both the Statute of Workers (the “SW”) and the Law Regulating Social Jurisdiction (the “LRSJ”) foresee the nullity of the dismissal only when certain circumstances expressly listed on exhaustively in the SW are present. Following this argument, in cases in which the respective formal requirements are not met, in order to avoid the employee’s defenselessness, the dismissal will be automatically and mandatorily qualified as unfair, with the payment of the maximum legal indemnity, but not as a null and void.

Such pronouncement is in line with the constant case law of the Supreme Court, which considers that, when there is no legal cause for the termination of the employment contract (being, therefore, a dismissal without cause) and the actual cause is not among those typified as determining the nullity of the dismissal, the applicable qualification is unfair dismissal.

For its part, the Constitutional Court emphasizes that in all dismissals, regardless of whether or not a specific cause is alleged, there may be an underlying violation of fundamental rights, which is why it has develop a doctrine, according to which the employee, if he/she believes that he/she has been dismissed for a reason that violates a fundamental right, may allege in his/her claim evidence of the same, thus producing the reversal of the burden of proof and, therefore, the requirement that it is the company that proves that the dismissal has occurred without any relation to the violation of a fundamental right. However, the failure to specify the cause does not imply a direct violation of the fundamental rights of the employee, not even of the right to effective judicial protection, since both the law and the case law exclude that the formal defect of a letter of dismissal be considered a violation of a fundamental right.

The majority vote examines the rules of general international and European law regulating this issue and considers that they reach the same conclusion as that set forth by the Supreme Court and the Constitutional Court. Thus, according to the opinion of the majority of judges of the Social Chamber of the SCJ of Catalonia, international, general and European law is unanimous as regards the causal nature of the dismissal. In view of this, consider that it is not possible to deduct that Spanish legislation contradicts international standards.

Following on its argumentation, the judgment resolves on what should be the legal qualification that the dismissal deserves while the prohibition of dismissal established by Article 2 of RDL 9/2020 is in force (that is, the prohibition of using objective causes linked to the COVID to dismiss, pretending to prevent the company from validly terminating a contract for objective causes related to that situation that could have motivated the suspension of the contract or the reduction of the working day through the internal flexibility mechanisms provided for in the exceptional regulations derived from Covid 19).

The majority vote considers that, if the exceptional legislator had wanted to attach to the breach of the prohibition the declaration of nullity of the dismissal, it would have to expressly refer this consequence (as is the case, for example, with the dismissal of pregnant women). The Court concludes that, if the exceptional rule does not provide for an express prohibition of dismissal, Article 6.3 of the Civil Code (the “CC”) is not applicable, an argument of the employee to request the nullity of the dismissal, which sanctions the nullity of acts contrary to the prohibitive rules. On the other hand, Article 6.4 of the CC is considered to be applicable, which states that acts carried out under the protection of the text of a rule that pursue a result prohibited by the legal system, or contrary to it, will be considered to have been carried out in fraud of law and will not avoid the due application of the rule that had been sought to be circumvented. Thus, and following the uniform and traditional case law of the Supreme Court in matters of individual dismissals in fraud of law, the consequence is not the nullity of the dismissal, but the unfairness of the dismissal.

However, the conclusion is not unanimous, but contains three dissenting opinions, which consider different divergences with the majority conclusion. Specifically:

  • The first dissenting vote issued understands that the justification of the causes is not linked to fraud of law (art. 6.4 of the CC) but to an act contrary to a mandatory or prohibitive rule and its effects of nullity of full nullity, in application of article 6.3 of the CC. In this sense, they consider that article 2 of RDL 9/2020 does not prevent the company from resorting to an objective dismissal for economic, technical, organizational and/or organizational reasons, but rather that the company will have to sufficiently demonstrate that the internal flexibility measures articulated in the exception rule to address the health crisis situation are insufficient to alleviate its critical situation.

    In this way, this dissenting opinion defends that if the company duly justifies that the measures contemplated in the aforementioned articles are insufficient, and the rest of the legal requirements are met, the qualification of the dismissal must be the appropriate one. However, on the contrary, if this evidentiary condition is not met, the appropriate classification would be nullity. In addition, this is due to the direct application of Article 6.3 of the CC, when an extraordinary mandatory rule with specific temporal effects limiting the conditional availability of the ordinary legislation and an act contrary to the same concur.

    Likewise, this dissenting opinion also defends the declaration of nullity on the grounds that, being a dismissal without cause, there has been an infringement of the right to effective judicial protection under Article 24 of the Spanish Constitution in relation to the constitutional right to work under Article 35 of the Spanish Constitution, in light of the mandates of ILO Convention No. 158. Thus, the dissenting judges consider that the constitutional affectation is manifest, not only because of the concealment of the real cause of the dismissal, but also because it aims to deprive the plaintiff of the constitutional right not to be dismissed without just cause.
  • As to the second dissenting opinion, it considers that the law creates a new -and exceptional- category of dismissals prohibited for reasons of public utility and national emergency, which should be treated in the same way as discriminatory dismissals or dismissals that violate fundamental rights.

    In this sense, the dissenting judge concludes that, given that the legislator wanted to avoid a drastic reduction in employment as a consequence of the pandemic by prohibiting dismissal for these reasons, the violation of these limitations would be punishable by the nullity of the dismissal in accordance with article 6.3 of the CC for constituting an act contrary to a mandatory rule. In short, the dissenting judge understands that the interpretation of the rule must be made in harmony with the objectives pursued, and the consequence of such dismissals must be their nullity.
  • Finally, the third dissenting opinion follows a similar line to the two previous dissenting opinions, stating that the legislator’s intention, from its point of view, is to prevent those cases in which there are business difficulties linked to the health crisis derived from Covid 19 from giving rise, as far as possible, to dismissals. In this sense, the dissenting judge considers that it is not a prohibition of dismissal but a legislative will to channel the negative business situations derived from objective causes and force majeure related to the pandemic. In view of the foregoing, they consider that it should be null and void by direct application of Article 6.3 of the CC.

1.3. Null and void dismissal due to discrimination for appearance of disability

Judgment of the Superior Court of Justice of Galicia, Social Chamber, of 13 April 2021 (Rec. 160/2020)

The judgment under appeal declared that the dismissal of an employee on the same day that he was run over by a vehicle while performing his work was unjustified. The employer, after visiting him in the hospital where he was hospitalized, discharged him from Social Security.

The plaintiff appealed on the grounds that the dismissal should be considered null and void.

The employee bases his claim for nullity on the undetermined duration of the healing process and the torpid evolution of the after-effects of the work accident, and, therefore, the existence of a situation of lasting disability, which leads to consider that the dismissal was discriminatory on the grounds of disability.

The rules and case law determine that persons with disabilities are those who have long-term physical, mental, intellectual or sensory impairments which, when interacting with various barriers, may prevent their full and effective participation in society, on equal terms with others, without the fact that a employee is in a situation of temporary disability, of uncertain duration, meaning, by itself, that the limitation of his capacity can be qualified as lasting for the purposes of assessing the existence of disability.

Likewise, in order to assess the existence of such discrimination, the situation existing on the date of the allegedly discriminatory act (in this case, the day of the dismissal) must be taken into account.

The judgment issued by the SCJ of Galicia concludes that the employee’s accident and the injuries resulting from it constitute a reasonable appearance of disability that the employer was able to appreciate at first hand when he went to the hospital to inquire about the employee’s health on the same day of the accident. This objective appearance must also be linked with the fact that the employer deregistered the employee from Social Security on the same day. Such a temporal connection shows the appearance of disability with the dismissal without existing other grounds that could justify such a decision and destroy such appearance.

Therefore, the SCJ of Galicia declared the nullity of the dismissal.

1.4. Change of doctrine: fraud of law in the matter of contracts for specific Works or services

Judgment of the Supreme Court, Fourth Chamber, Social Court, Plenary Section, of 29 December 2020 (Rec. 240/2018)

The judgment, issued by the Plenary, analyzes whether a temporary contract for work and services, linked to a subcontractor, justifies, without further explanation, this type of contract. It should be noted that, for this type of contract, it is necessary that (i) the work or service that constitutes the object must have its own autonomy and substance within the labor activity of the company; (ii) its execution, although limited in time, must in principle be of uncertain duration; (iii) the content of the contract must detail precisely and clearly the work or service that constitutes the object; and, (iv) the employee must normally be employed in the execution of the work or in the performance thereof and not in different tasks.

In this sense, the Supreme Court concludes that, when the company that uses this type of contract has as its main activity the rendering of services for third parties, the referred cause cannot be used to justify this particular contract as it is completely denaturalized. Thus, if the ordinary activity of the company is of such characteristics, the note of autonomy that characterizes these temporary contracts will be missing, being illogical, in the opinion of the Supreme Court, that the cause of its activity has the exceptional nature that the work or service contract seeks to cover.

2. NEWS

2.1 Since 14 April 2021, companies are obliged to keep a salary register of their entire workforce

Since 14 April 2021, all companies are required to keep a Salary Register (the “SR”) of their entire workforce, including management personnel and senior executives, as a result of the entry into force of Royal Decree 902/2020, of October 13, on equal pay for men and women.

The purpose of this SR is to promote wage transparency in companies in order to guarantee equal pay for men and women in jobs of equal value. The aim is to combat the so-called gender pay gap.

The SR must include the average values of salaries, salary supplements and non-salary payments of the workforce broken down by sex, and must also include the arithmetic mean and median by professional group, level, position or any other applicable classification system.

As a consequence of the information derived from the SR and/or failure to comply with this obligation, possible administrative and judicial actions are established, including the application of sanctions for the existence of discrimination in the company or for not having the SR available.

Finally, it is important to bear in mind that in companies with legal representation of the employees (the “LRE”), access to the SR will be facilitated by the employees, who will have the right to know the full content of the same.

However, if there is no LRE, the information to be provided by the company must be limited to the percentage differences in the average remuneration of men and women.

2.2. UGT wants to legally penalize companies that do not comply with the wage increases agreed in the Collective Bargaining Agreement (the “CBA”)

UGT will debate in its 43rd Confederal Congress, as explained in the presentation conference by the Secretary of Organization of the union, a series of proposals to improve the quality of employment and the working conditions of the employees, among which are the following:

  • Implementation of the working week of 32-hour.
  • Introduction in the legislation a penalty for those companies that do not comply with the salary increases agreed in CBA.
  • Restricting the cases in which companies can refuse to comply with the salaries agreed upon in CBA, as well as limiting the salary ranges in companies, so that none employee can earn more than a certain number of times what the employee who earns the least in the company earns.

In short, UGT intends to undertake a reform of the unemployment protection system to increase benefits and their duration, a “comprehensive” tax reform that rebalances the weight of the different tax figures and the equalization of the rights of employees in multiservice companies with those of the companies where they actually work.

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