Introduction

Spanish labour law grants a range of rights and privileges to employees who exercise their right to request a reduction of their working hours:

  • to take care of a child under 12 years old;
  • to take care of a disabled family member; or
  • where the employee is a victim of gender-based violence.

The employment courts recently expanded the scope of such rights and privileges based on social progress and the special characteristics of labour relationships. One such example is a recent Supreme Court decision, which represents a step forward in recognising the abovementioned rights when employees are dismissed and the dismissal is declared null and void by an employment court.

Regulatory background

Employees in one of the above situations are entitled to reduce their working hours with a corresponding reduction in salary. In such cases, employers cannot refuse an employee's request.

Employers may oppose the work schedule proposed by an employee; however, such opposition must be strongly justified and based on organisational grounds. In case of a conflict of interest between the parties, the interest of the employee's child, the disabled family member or the victim of gender violence will prevail.

This convergence of interests has led to labour disputes in the employment courts. In such cases, the judge will establish the employee's work schedule during the period of reduced working hours.

Employees' rights in case of termination

Based on this general right, employment law grants special protection to employees who enjoy a reduction in working hours for childcare purposes in the following circumstances.

Employer terminates employee's contract based on objective grounds If an employer terminates an employee's contract based on an objective ground, in order to avoid any indication of discrimination, Spanish case law states that employers should provide a detailed justification of not only the grounds for dismissal, but also the reason for having selected an employee on reduced working hours to be dismissed. Therefore, although such employees do not have a de facto right to be retained by their employer, they are effectively given priority since the employer must provide a stronger justification for their dismissal.

Employee dismissed for objective or disciplinary reasons If an employee who enjoys reduced working hours for one of the above reasons is dismissed for objective or disciplinary reasons and files a claim challenging the dismissal, the dismissal will be declared null and void if the employer cannot show evidence of its alleged grounds for the dismissal. In such cases, the employee will be reinstated in their previous position and receive the salary accrued from the termination date until their effective reinstatement.

Facts

The Supreme Court judgment concerned an employee on reduced working hours whose dismissal was declared null and void. The issue raised before the court was whether the salary used to calculate the salary accrued from the employee's termination date until their effective reinstatement was the salary that the employee had received:

  • prior to their working hours being reduced; or
  • at the time of their dismissal (ie, their reduced salary).

Decision

The Supreme Court held that the salary to be considered in order to calculate an employee's accrued salary is the salary that they received prior to their reduction in working hours.

The Supreme Court argued that these amounts are considered severance pay (and not ordinary salary) as they are compensation for the damages caused to the employee by their loss of employment during the relevant period, particularly when the dismissal is declared null and void and was therefore in breach of the law.

According to the Supreme Court, a contrary interpretation would discourage employees from exercising their legal right to a work-life balance. Thus, employees would suffer from the reduction of their accrued salaries in the event of dismissal.

Further, the Supreme Court stated that such an interpretation could ultimately lead to indirect gender-based discrimination, as the majority of employees who request a reduction in working hours for the above reasons are women.

Comment

The Supreme Court's decision has once again strengthened employees' rights to a reduction in working hours for childcare purposes.

Also of note is the Supreme Court's ruling that a broad interpretation of these rights aims to achieve gender equality and equal treatment between men and women at work, given that these work-life balance-related rights are usually requested by women.

For further information on this topic please contact César Navarro or Elena Esparza at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.com or elena.esparza@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.

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