Latest labor news / September 2022

The Supreme Court declares that an appeal for reversal is admissible in claims for the reconciliation of personal and family life with a claim of violation of fundamental rights.

In the case of a claim for the reconciliation of personal, family and working life with a claim of violation of fundamental rights, an appeal for reconsideration is allowed, even when the amount of compensation requested does not exceed 3,000 euros. This was determined by the SSTS of July 20, 2022.

The Supreme Court recalls that it is true that in claims for reconciliation of work and family life, to which a claim for damages is added, the doctrine of this Court is clear that it accepts access to that appeal when the amount claimed exceeds 3,000 euros. This is recalled, among others, in the SSTS of December 15, 2020. This new Ruling explains the existence of other circumstances that we must also analyze to examine whether the Ruling could be appealed in appeal. And, that other avenue is the protection of fundamental rights.

The Supreme Court points out that, despite the fact that the violation of fundamental rights had been dismissed, this is an argument that affects the substance of the case and not the form or, therefore, the reality that a process of reconciliation of family life has been processed with a complaint of violation of fundamental rights, which the party has maintained throughout the process. That is to say, access to the appeal is not determined by the sign of the ruling, as the Supreme Court makes clear, but by the claim articulated in the lawsuit. For all these reasons, the SC upheld the appeal filed by the worker.

The employee, whose dismissal is declared null and void, is entitled to vacation according to the Supreme Court.

In the recent ruling of July 12, the Supreme Court ruled that, in the event of an unfair dismissal and the company opts for reinstatement or in cases in which the dismissal of an employee is declared null and void, the employee will be entitled to the vacation that would have accrued during the entire time he/she was on leave.

It is understood that, although the vacations are accrued for the time actually worked, since they are constituted as a rest, the non-accrual or non-enjoyment is due to a cause not attributable to the employee - the dismissal -. Therefore, once the employee has been reinstated or reinstated, he/she should not be prejudiced in terms of vacations either.

This judgment is based on previous decisions of the CJEU, which had marked the same line on the enjoyment of vacation in cases of workers who were unlawfully dismissed and subsequently reinstated.

The Supreme Court decides that the father can take breastfeeding leave, even if the mother does not work.

In a ruling dated July 12, 2022, the Supreme Court ruled that the fact that the mother of the newborn child does not work cannot be a reason for denying the other parent the right to breastfeeding leave.

In this regard, the Court clarifies, in accordance with Community case law, that breastfeeding leave, in accordance with the provisions of the Workers' Statute, is an individual right of the worker, the specific nature of which corresponds to the beneficiary and which is only limited in the event that both parents work.

Consequently, since this case does not fall within one of the situations limiting the right, there is no reason to interpret it in a restrictive manner. It also recalls that this is a right arising from the exercise of a fundamental right, so that the fact that one of the parents does not work cannot prevent the parent who does work from exercising his or her right to enjoy breastfeeding leave.

Royal Decree 16/2022 of september 6 for the improvement of working conditions and social security for domestic workers.

Following the Judgment of February 24, 2022 in which the Court confirms the discrimination against domestic workers by denying them access to unemployment benefits, the legislator publishes today, September 8, RD 16/2022 of September 6, which will enter into force on September 9 for the improvement of working conditions and safety of domestic workers.

The main measures of the regulation are:

1. Employers are obliged to pay contributions for domestic employees for the FOGASA and unemployment contingencies as from October 1, 2022.
2. It establishes the obligation to provide information on the working conditions of domestic employees. Any of the parties will be able to demand the formalization of the contract in writing, in the terms established by the Workers' Statute. Likewise, the presumption of the indefinite nature of the employment relationship is established.
3. By virtue of the contribution by the FOGASA, the guarantee of collection of the corresponding indemnity in case of insolvency or bankruptcy of the employer is provided for.
4. It is declared that the Law on Prevention of Labor Risks (LPRL) will be of obligatory application for domestic employees, guaranteeing their right to health and safety at work.
5. In relation to termination, the figure of abandonment is eliminated and new causes for termination of the contract are included in addition to those provided for in the TE:

• • Decrease in the income of the family unit or increase in its expenses due to a supervening circumstance.
  • Substantial modification of the needs of the family unit that justify the dismissal of the domestic worker.
  • The behavior of the worker that justifies in a reasonable and proportionate manner the loss of confidence of the employer.

These causes will require a notice of dismissal and must be accompanied by an indemnity of 12 days' salary per year worked with a limit of 6 monthly payments.

If these requirements are not met, it is understood that a dismissal has taken place in accordance with the ET and may be declared unfair with a compensation of 33 days per year with a maximum of 24 monthly payments.

In the case of internal employees, except for a very serious breach of the duties of loyalty and trust, termination may not take place after 7:00 p.m. and up to 8:00 a.m. the following day.

6. Finally, a study commission is foreseen, the objective of which will be the identification of occupational diseases in the group of domestic employees.