Employment Flash – September 2024

1.- Brief overview of the new law on equal representation and balanced presence of women and men.

Some interesting changes to labour law have been introduced by Organic Law 2/2024 of 1 August on Equal Representation and the Balanced Presence of Women and Men, which came into force on 22 August.

The law establishes the general principle of balanced representation in administrative, representative and governing bodies in the various sectors and throughout the legal system. This means that the presence of representatives of each sex in these bodies may not exceed 60% or be less than 40%, unless a reason is given for not achieving this parity and the measures to be taken to achieve it are indicated. Specifically, the law provides that this principle applies to the representative, management and administrative bodies of trade unions and employers' organisations.

The law also regulates the figure of the company equality officer, considered crucial in promoting and monitoring gender equality in organisations, and defines the specific requirements for exercising this profession and the necessary training and academic qualifications in gender studies, feminist studies and public equality policies.

Finally, the protection of victims of sexual violence has been strengthened. Their rights have been extended in terms of reduced working hours, preferential treatment in the event of transfer or change of job, suspension of employment contracts and protection against dismissal.

Furthermore, the regulation has been controversial due to the removal of two grounds that previously guaranteed the automatic nullity of dismissals.

In this sense, the most prominent and controversial amendment is the elimination (apparently in a surprisingly inadvertent manner for the legislator) of the so-called "automatic nullity" of dismissals affecting employees who request an adjustment of their working day for reasons of conciliation (Art. 34.8 ET) or who take family leave under Art. 37.3b) ET.

Thus, until this elimination is corrected by a new amendment to the law (which has already been announced by the government, without further specification), the dismissal of workers in such situations will not necessarily be null and void if the measure is found to be unjustified, without prejudice to the possible claim for nullity on the grounds of discrimination, This means that such dismissals can be declared fair (a valid ground alleged is proven), void (because they are considered discriminatory or infringe fundamental rights) or unjustified/unfair (because they are not based in valid grounds but no discriminatory or infringe fundamental rights is proven).

2.- Decision of the European Committee of Social Rights on compensation for unfair dismissal, adopted on 20 March.

The European Committee of Social Rights (ECSR) has adopted its decision on the complaint lodged by the Unión General de Trabajadores (UGT) on 20 March 2006. The decision was published on 29 July 2006. The UGT claimed that compensation for unfair dismissal, as compensation automatically fixed by law, with a maximum limit and without taking into account the actual damage suffered, "is not adequate to cover the damage suffered and does not have a dissuasive effect", in breach of Article 24 of the European Social Charter, as it does not guarantee the right to adequate compensation.

The ECSRC analyses the relevant legislation and jurisprudence (Spanish and international), and refers to its findings in previous cases concerning the same issue and the legislation of other States, to conclude that the maximum amounts provided for in the Spanish legislation on unfair dismissal, with a ceiling of 24 maximum monthly compensation payments of 33 days' salary per year of service, are not "sufficiently high to compensate the damage suffered by the victim in all cases and to deter the employer" and that "it is possible that the actual damage suffered by the worker concerned, in relation to the specific characteristics of the case, may not be duly taken into account". Although some Spanish courts recognise the possibility of awarding additional compensation, this is exceptional. Such decisions are not only based on the European Social Charter, but also, and in particular, on Article 10 of the ILO Convention No. 158.

As a result, the Committee came to the conclusion that the Spanish legislation in this area does not comply with the provisions of Article 24 of the European Social Charter, in the context of the broad interpretation given by the Committee to this European legislation, in line with similar decisions previously adopted with regard to other national European legislation.

However, it is important to emphasise that this is a non-binding report and does not constitute a jurisdictional decision.

3.- Judgment of National Court of Justice, no. 3683/2024, dated June 27, 2024

The Judgment resolves an action brought by the majority trade unions against the Spanish Red Cross, in which they challenged the implementation of a total of 149 contract terminations between October 2023 and January 2024, considering that this disguised a de facto collective dismissal through individual terminations (for reasons not inherent to the person of the employee), which were part of a global process that should have been dealt with under the procedure established in Article 51 of the ET, and therefore requested that the dismissals be declared null and void.

The main question raised is whether, in order to determine whether there is a collective redundancy, account should be taken of the objective individual dismissals ex art. 52c) ET, based on various organisational and productive reasons which do not affect the company as a whole, and which referred to the conclusion of a total of 41 different projects and contracts, without the various individual redundancies based on the same reasons exceeding the collective dismissal procedure thresholds.

The Court concludes that all dismissals for objective reasons must be counted as a whole process, since they exceed the thresholds set by both Article 51(1) of the ET at company level and by Directive 98/59/EC at workplace level, regardless of whether the grounds are different.

In addition, it is considered that contractual terminations based on failure to complete the probationary period should also be counted, taking into account the high number of terminations for this reason during the reference period and that the specific reasons for failure to complete the probationary period were not given. All this could give rise to a presumption of fraudulent behaviour.

As a result, the judgment declares the dismissals that took place during the period analysed to be null and void for reasons that are not inherent to the worker's person, as well as the right of the employees concerned to return to their jobs.

4.- Judgment of the High Court of Justice of Cantabria no. 522/2024, dated June 17, 2024.

The dismissal of a employee who had informed his employer two weeks before that his partner was pregnant was declared null and void by the Cantabrian High Court. The reason given by the company for terminating his contract was a drop in her work performance. However, the company subsequently recognised the unfairness of the dismissal (and therefore the lack of a valid reason for dismissal) and paid the relevant compensation.

The High Court corrects the Judge's decision, which ruled out concurrent discrimination, and recognises the existence of 'reflex discrimination' or 'discrimination by association', which occurs when (in this case) “the person discriminated against is not the holder of the constitutionally protected status, but suffers the harmful or degrading treatment of discrimination because of his or her relationship with the holder of the prohibited differentiating characteristic”.

The Judgment found that the real reason for the dismissal was the announcement of his wife's pregnancy, in violation of Article 14 of the Constitution, which prohibits discrimination.