Employment Update, Spain - June 2007

28 June 2007

Daniel Cifuentes

New Legislation

EU citizens: right to enter, move and reside freely in Spain

Royal Decree 240/2007 of 16 February 2007 transposed Directive 2004/38/EC and set out the conditions for exercising the following rights:

  • Right of entry and exit;

  • Right of free movement;

  • Right of residence;

  • Right of permanent residence; and

  • Right of EU citizens or members of the European Union Member States (and their families) to work in Spain.

RD 240/07 also sets out the restrictions to the rights of entry and residence and addresses the following issues:

  • public policy;

  • public security;public health (including expulsion from the Spanish territory);

  • administrative formalities of applications

  • procedure; and

  • the issue and renewal of registration certificates and residency cards (to be granted by the relevant foreign office or the relevant police station).

Agreement on collective bargaining for 2007

The main objective of this agreement is to encourage the competitiveness of the Spanish economy. The economy needs to be competitive in order to adapt to the economic changes flowing from EU enlargement, globalisation and the effects of other economic developments on employment. This agreement establishes the guidelines for collective bargaining in connection with wage issues, the creation of jobs, and social responsibility of companies.

Equality between women and men

Statute 3/2007 of 22 March 2007, on equality between women and men establishes the principle of equality and equal opportunities in employment, professional training, promotion and working conditions. Similarly, Statute 3/2007 deals with discrimination based on maternity, which is to be viewed as direct sex discrimination.

Statute 3/2007 sets out specific measures for these purposes, such as:

  • programmes for the improvement of women’s employment conditions;

  • promotion of equality in collective bargaining;

  • the acknowledgement of the right of employees to personal, family and professional life; and

  • the preparation and application of gender equality plans by companies (with over 250 employees).

In this regard, an award for distinction was established for companies which undertake to apply equality policies. This is beneficial for both commercial and advertising purposes.

Furthermore, in relation to labour and social security matters, Statute 3/2007 amends various aspects of the following:

  • the Statute of Workers;

  • the General Social Security Law;

  • the Labour Procedure Law;

  • the Law on the Infringements and Sanctions in the Labour Jurisdiction; and

  • the Law on the Prevention of Occupational Hazards.

Labour related infringements and penalties: updates to penalties

Royal Decree 306/2007 adjusts the amounts of penalties (contained in article 40.1 of Law on the Infringements and Sanctions in the Labour Jurisdiction (“LISLS”)) for; infringements in labour and employment relationships, social security matters and infringements in matters involving immigration and the employment of foreigners.

Case law

Unlawful dismissal/Pregnant employee/Discrimination/Compensation for damages
(Judgment of the Constitutional Court no 342/2006 of 11 December 2006)

The Constitutional Court held that an employer’s knowledge of a pregnancy in itself does not qualify as evidence of sexual discrimination. However, the fact that the employee had been promoted before she communicated her pregnancy to the employer did constitute sufficient evidence of sexual discrimination. As a consequence, the dismissal was declared void for discrimination reasons and the employee was not only entitled to re-employment but was also entitled compensation in the form of damages on grounds that the employer had violated her right not to be discriminated against on grounds of gender.

Working time reduction for legal guardianship: employee’s right to determine the working day
(Judgment of the Constitutional Court no. 3/2007 of 15 January 2007)

According to the Constitutional Court, the labour courts must determine if a company’s refusal to grant an employee’s request for a reduction in working hours would constitute an obstacle to the accommodation of the employee’s family and professional life (in light of the employee’s right to non-discrimination based on gender).

Disciplinary dismissal/Unfairness/Private use of IT equipment
(Judgment of the Labour Chamber of the High Court of Justice of Madrid of 10 October, 2006)

The High Court of Justice of Madrid considered that the decision to dismiss an employee for using a company’s IT equipment to surf the internet during working hours (without the company’s authorisation), was not justified for the following reasons:

  1. the employee did not spend a considerable part of his working day surfing the internet;

  2. the activity did not prevent the employee from doing his job;

  3. the employee did not cause any financial damage to the company through his activities; and

  4. there were no specific provisions in the collective bargaining agreement which applied to his employment relating to his use of the internet which would justify his dismissal