In a 15 July 2021 judgment, the Supreme Court determined whether a company should pay a covid-19 hazard bonus to employees who had been regularly exposed to the public.(1) The Court considered the covid-19 infection rate within the company as a factor to determine whether the implemented prevention measures had been effective in preventing the type of danger that would warrant a hazard bonus.
In this case, the employees of a supermarket chain who were in direct contact with the public had collectively claimed payment of the hazard bonus, which had been established in the applicable collective bargaining agreement.
The collective's dispute was brought before the labour section of the High Court of Justice of Asturias (Oviedo), which, after assessing the facts of the case, proceeded to dismiss the claim in its entirety.
In opposition to the high court's decision, two Spanish trade unions (Unión Sindical Obrera and Comisiones Obreras) filed an appeal before the Supreme Court. In their appeal, the parties argued that while the company had provided its employees with some means of protection, which were insufficient to prevent the occupational risks that had arisen as a result of covid-19.
The Court considered that the employees should be entitled to receive the hazard bonus since the risk of contagion on the company's premises had not been suppressed.
The article of the collective bargaining agreement that regulates the hazard bonus provided that the danger in question must persist during working hours, even if the company has established the necessary safety measures. In this specific case, the correct preventive measures had been implemented, as well as the provision of specific personal protective equipment for people who were in direct contact with the public.
The Court considered that the company had implemented sufficient covid-19 prevention measures to protect employees' while exposed to the public, which included:
- social distancing;
- masks;
- cleaning and disinfection;
- capacity control; and
- prioritising credit card payments.
In addition, the high court had considered the fact that only 1% of employees had been infected by covid-19 in the company's workplaces, which the high court had stated was a "milestone in the fight against the pandemic". The high court had also highlighted the respondent party's occupational risk prevention system and considered that the implemented measures to prevent contagion had been sufficient.
Given the above, the Supreme Court concluded that the company had sufficiently complied with its covid-19 prevention obligations.
The article of the collective bargaining agreement that regulates the aforementioned hazard bonus foresees two circumstances that could give rise to its payment; however, only one of these criteria had been fulfilled in the case at hand. Therefore, the Supreme Court found that the company was not legally obliged to pay the claimed hazard bonus.
Thus, the appeal brought by the applicant was dismissed and the judgment under appeal was upheld and declared binding.
For further information on this topic please contact Elena Esparza or María José Ramos at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] and [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.
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