Publications

The installation of a monitoring device in an employee's computer does not constitute an infringement of fundamental rights

The High Court of Justice of Castilla y León, in its judgment dated December 30, 2021, has declared that the installation of a monitoring device on an employee's computer may involve "excessive" control, but does not constitute an infringement of the fundamental right to privacy. 

In the studied case, the company found that the employee had not been working for several minutes, so it accessed the contents of her device while she was teleworking and found that she was visiting an Internet forum, calling her attention to this fact. Faced with this situation, the worker sent an email to human resources and her supervisor, stating that she understood that her right to privacy had been violated. 

The court upheld the lower court's decision declaring the dismissal unlawful but dismissing the nullity claim. It considered that there had been no violation of the fundamental right to privacy that could lead to a dismissal in violation of fundamental rights. Likewise, it declared that the guarantee of indemnity did not apply either, as it understood that the e-mail was not considered as an extrajudicial claim. 

The Supreme Court declares the dismissal of a female employee who announces her upcoming marriage for the purpose of requesting leave as null and void

In the case analyzed by the judgment of February 2, 2022, the Supreme Court concludes that the dismissal following the worker's announcement of her future marriage and her desire to take paid marriage leave is null and void. The court affirms that the constitutional list of circumstances against which discrimination is proscribed is open, so that "to adopt a derogatory decision for a worker as a consequence of her announcing or getting married is, quite simply, to inflict discriminatory treatment on her, contrary to Article 14 of the Constitution".

The judgment also invokes EU law on non-discrimination in employment on grounds of gender and cites Article 33 of the Charter of Fundamental Rights of the European Union which proclaims that "everyone has the right to be protected against dismissal for reasons connected with maternity" and, on many occasions, a woman's marriage falls into this category.

Reinstatement after a voluntary leave of absence in a location other than the one in which the services were rendered previously is valid when the previous workplace is closed

The Supreme Court, in its ruling of January 18, 2022, deals with the case of an employee on voluntary leave of absence who requests his reinstatement and finds that his work center has been closed. The court considers that this is not a case of dismissal since the closing of the work center is not an impediment to maintain the worker’s preemptive reinstatement right, since there are other work centers available. Consequently, the employer never denied the possibility of reinstatement, but on the contrary, preserved his right to reinstatement and kept the contractual relationship alive.

Employees on leave due to COVID-19 are not entitled to the supplement for temporary disability comparable to a work-related accident

The Supreme Court, in a ruling dated January 20, 2022, declares that workers in a situation of temporal disability comparable to a work-related accident derived from COVID-19 are not entitled to receive the supplement of 100% of the month prior to the sick leave’s regulatory base. Thus, workers in a situation of temporal disability comparable to a work-related accident due to periods of isolation, contagion or restriction in leaving the municipality due to COVID-19, will be so only and exclusively for the Social Security temporary disability economic benefit.

Companies must adapt job positions in cases of supervening ineptitude, unless it would impose an excessive burden on the company

The Court of Justice of the European Union (CJEU) has issued a judgment dated February 10, 2022 interpreting Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

Specifically, it concerns the case of an intern whose contract was terminated as a result of his being declared unfit to perform the duties for which he had been recruited. The CJEU concludes that Article 5 of Directive 2000/78 must be interpreted as meaning that the concept of "reasonable accommodation for people with disabilities" implies that the employer must assign the employee declared unfit to another post for which he has the skills, abilities and availability required, provided that this measure does not impose an excessive burden on the employer.

The CJEU dictates that vacations must be accounted for as effective working hours for the purposes of calculating overtime

The CJEU, in its judgment of 13 January 2022, has ruled that Article 7(1) of Directive 2003/88/EC must be interpreted in light of Article 31(2) of the Charter of Fundamental Rights of the European Union, rejecting a provision of a collective bargaining agreement under which, for the purposes of determining whether the necessary hours worked to obtain an overtime allowance are reached, the hours corresponding to the period of annual leave are not counted as effective working hours.

One of the elements raised by the court in order to reach this conclusion is that, since it entails an economic detriment for the worker by not reaching the right to be compensated for overtime, it could dissuade the worker from exercising his right to enjoy the vacation period.