Employment Newsletter March
Legislative News
1. Entry into force of the twenty-sixth final provision of the Organic Law 1/2025, of 2 January, on efficiency measures for the Public Justice Service
On 3 April 2025, the amendments made to Law 36/2011, of 10 October, 2011, regulating the social jurisdiction, will enter into force. The purpose of these amendments is to guarantee the agility of the social jurisdiction (e.g., guaranteeing that the judge will issue oral judgments, including the possibility of appointing conciliation and trial acts on separate days, increasing the previous 5 day term to 10 days proceedings for the preparation of evidence, etc.) as well as the twenty-sixth final provision, which amends the Royal Legislative Decree 2/2015, of 23 October, which approves the revised text of the Workers' Statute Law ("WS"). A more detailed analysis of the amendment to the WS can be found in the December Newsletter from the Ashurst's Employment Law and Data Protection Team (Consult here).
2. Entry into force of Royal Decree-Law 11/2024, of 23 December, to improve the compatibility of retirement pensions with work
On 1 April, 2025, this Royal Decree enters into force. The analysis can be found in the December Newsletter from the Ashurst's Labour Law and Data Protection Team (Consult here).
Judgements
1. The subrogation obligation between outgoing and incoming contracting companies cannot be evaded by means of a prior collective dismissal by the outgoing contracting company
Judgement 174/2025, of the Supreme Court, Social Chamber, of 5 March 2025
The Supreme Court ("SC") resolves whether the incoming contracting company (which is entering into a service contract) must subrogate itself as the employer of the outgoing contracting company employees, when the latter carried out a previous collective dismissal.
It is concluded that the contracting company entering into the contract is obliged to assume the employees subrogation despite the fact that the outgoing contracting company had previously carried out a collective dismissal for productive reasons. The forfeiture of a contract cannot neutralize the legal subrogation obligation imposed on the new contracting company, especially when the latter continues the activity with the same object and maintains essentially the same staff.
2. The remote working agreement clauses which do not allow for the substitution of the agreed remote working days when work is actually performed on-site and those that provide that there is no expenses compensation are considered null and void
Judgement 164/2025, of the Supreme Court, Social Chamber, 4 March 2025
An appeal is resolved in which the validity of the following clauses of a remote working agreement are argued: (i) the company's entitlement to require, in some cases, on-site attendance on the days on which remote working had been previously agreed, without allowing the substitution, accumulation or displacement of these days, and (ii) that the expenses associated with remote working are automatically compensated with the savings generated with this modality of services provision.
The SC confirmed the nullity stating that: (i) a modification of the percentage of on-site attendance cannot be imposed unilaterally because there must be a written agreement between the company and the employee and (ii) Law 10/2021 of 9 July, on remote working, requires that the expenses associated with remote working are economically compensated in a specific manner and that, although there may be workers who do not have to assume expenses for remote working, there are others who do. Therefore, the agreement cannot prevent those remote workers from claiming expenses compensation.
3. In case of an unlawful assignment of workers, the right to claim salary differences arises from the salaries accrual that would have been owed by the transferee company
Judgement 132/2025, of the Supreme Court, Social Chamber, of 26 February 2025
It was discussed whether the period to claim wages derived from an unlawful assignment of workers should be computed from the wages accrual that would have corresponded to them in the transferee company or from the judgment declaring the existence of such illegal assignment.
The SC concludes that the right to claim wages arises from the moment they are accrued, without it being linked to the moment of the judicial declaration of the unlawful assignment which must be carried out as the unlawful assignment is taking place. Therefore, it applies the one-year statute of limitations of article 59 WS and points out that the filing of a claim declaring the existence of an unlawful assignment of workers does not interrupt the statute of limitation to claim wage differences.
4. Mandatory application of the state collective bargaining agreement for auxiliary and information services, reception, access control and facilities testing to a multiservice company with personnel assigned to different contractors
Judgement 131/2025, of the Supreme Court, Social Chamber, of 26 February 2025
The SC resolved an appeal regarding the applicable collective bargaining agreement ("CBA") to the workers of a multiservice company, who provide services in various contracts and to whom the WS was being applied.
The SC declared the applicability of the state CBA for auxiliary and information services, reception, access control and facilities testing, sharing the interpretation previously given by the joint committee of the aforementioned agreement.
The SC reached the aforementioned conclusion, for the following reasons: (i) the workers assigned to said contract performed functions included in the scope of application of this CBA and, in accordance with article 42.6 WS, the applicable CBA to the contractor companies is the one of the sector of the activity carried out in the contract; (ii) a state CBA takes precedence over the WS; and (iii) this CBA was expressly created to prevent the deterioration of working conditions that would have resulted from its non-existence.
5. The Supreme Court grants 26 weeks of paid leave due to child birth to a single-parent family
Judgement 118/2025, of the Supreme Court, Social Chamber, of 19 February 2025
The SC recognizes the right to 26 weeks of parental leave to a single mother based on the following:
(i) the legal obstacles that prevented the Chamber from recognizing the right to accumulate the leave in single-parent families has been overcome due to the unconstitutionality declared by judgment 140/2024, of the Constitutional Court, of 6 November, 2024, of both article 48.4 WS (which prohibited the accumulation of the leave due to childbirth of 16 weeks for each parent) and of article 177 of the General Social Security Law (which regulates the economic benefit of the aforementioned leave);
(ii) the prohibition of accumulation is discriminatory for children born into a single-parent family; and
(iii) the contrary would imply a case of indirect discrimination, since the number of women in single-parent families is higher.
Therefore, it grants 10 additional weeks (those corresponding to the other parent, not counting the 6 mandatory weeks after childbirth) to the period of 16 weeks initially recognized for the biological mother.
6. Two criminal charges since the offence against safety in the workplace and the offence of injury are compatible when the risk affected to other employees as well as the injured employee
Judgement 122/2025, of the Supreme Court, Criminal Chamber, of 13 February 2025
The SC resolves an appeal in which the compatibility between the crimes of danger and of result in the field of labour relations included in Organic Law 10/1995, of 23 November, 1995, of the Criminal Code ("CC") is discussed.
Article 316 CC punishes the omission of safety measures (danger crime), which requires the concurrence of: (i) a risk prevention regulations infringement; (ii) failure to provide the necessary means for the performance of the work in adequate safety and hygiene conditions; and (iii) endangering the life or physical integrity of the workers. In this case, the injured worker suffered a serious fall, due to the absence of collective safety measures provided in the Safety Plan. Article 152.1.3 CC, in connection with article 150 CC, requires that, as a consequence of the injuries, the loss or uselessness of an organ or non-main limb or deformity to be produced, which happened in this case, as the worker suffered serious vertebral fractures that affected his mobility and functionality.
There is a concurrence of the two criminal offences because, the failure to implement safety measures not only resulted in injuries to the worker, but also placed the health and safety of the remaining employees at risk.
7. Validity of the delivery of the objective dismissal letter to the workers' legal representatives after the dismissal
Judgement 96/2025, of the Supreme Court, Social Chamber, 5 February 2025
An employee claims that his objective dismissal should be declared unfair due to formal defects as established in article 53.1 WS. It is alleged that, although the works council president was present at the time of delivery of the letter, the dismissal had not been communicated simultaneously to the workers' representatives.
The SC rules that the dismissal must be considered fair, as the dismissal letter was sent to the workers‘ representatives five working days after the dismissal, and therefore the representatives’ rights to information or the dismissed worker's rights to complain were not affected.
8. Nullity of the dismissal due to supervening ineptitude of the worker based solely on the report of the Health and Safety prevention services
Judgement 94/2025, of the Supreme Court, Social Chamber, 4 February 2025
This ruling assess the employment contract termination due to the supervening ineptitude of a worker on sick leave as a result of a report from the prevention service, which had declared the worker unfit to perform her job after her medical discharge.
The SC declared that there was no contradiction and, consequently, dismissed the appeal for the unification of doctrine and the judgment of the High Court of Justice of the Basque Country was upheld. It declared the dismissal null and void and ordered the company to compensate the worker for moral damages in the amount of 12,000 euros, stating that: (i) a temporary disability of almost two years is equivalent to a disability, which implies that reasonable adjustments must be made to her job (which did not happen); (ii) a report from the prevention service cannot justify the dismissal if the specific limitations and its impact on the job position are not precisely justified and; (iii) the company did not provide evidence of the difficulties in adapting or relocating the employee.
9. The paid leave for hospitalization to five days per year covers the cases of required home care after hospitalization
Judgement 39/2025, of the National High Court, Social Chamber, of 7 March 2025
The National High Court ("NHC") judges the validity of the employer's practice of limiting paid leave under Article 37.3.b) WS to a maximum of five working days per year and restricting it exclusively to days of hospitalization or surgery with hospitalization, even if the family member subsequently continues to require home care.
The nullity of these provisions is declared because: (i) article 37.3.b) of the WS does not establish any limitation to the leave entitlement in the event that several triggering events occur in the same year; (ii) hospital discharge does not necessarily imply medical discharge or the termination of paid leave when there is a prescription for home rest; and (iii) a restrictive interpretation would perpetuate the gender labour gap, violating the principle of equal treatment and opportunities between women and men.
10. Nullity of clauses of an incentive plan that penalize an employee when work-related misconduct concurs
Judgment 35/2025, of the National High Court, Social Chamber, of 3 March 2025
The NHC judges the validity of clauses included in a company's incentive plan that deprive employees of the receipt of incentives when they have received a serious or very serious sanction and reduce them to 50% when they receive a minor sanction.
The nullity of these penalties is declared because: (i) penalties that imply the loss of economic rights already accrued cannot be imposed; (ii) article 58.3 WS expressly prohibits salary deductions as disciplinary sanctions; and (iii) a penalty not expressly provided for in the CBA would be imposed if this were to take place.
To keep an eye on
1. Commencement of negotiations for the amendment of the Occupational Risk Prevention Law
The Ministry of Labour and Social Economy has initiated the process of amending Law 31/1995, of 8 November, 1995, on the Prevention of Occupational Risks, with the aim of updating the regulatory framework to the new labour challenges. The project focuses on reinforcing protection against psychosocial risks, such as stress and mental health, incorporating specific measures to guarantee psychological well-being in the work environment.
It also addresses the risks associated with the climate crisis and includes a gender and age perspective in risk assessment.
At present, the Ministry is still in the dialogue phase with social agents, unions and trade organizations.
2. Political agreement on the Minimum Interprofessional Wage and the Personal Income Tax
The political parties PSOE and Sumar have reached a political agreement so that, as from 2025, recipients of the minimum interprofessional wage ("MIW") will not pay personal income tax ("PIT").
This agreement seeks to compensate the 20% of workers affected by the increase in the MIW who, if this measure were not applied, would have to pay taxes for the excess of 700 euros between the amount of the MIW and the amount exempt from PIT.
The deadline to present the veto to Sumar's bill ended this past Friday 28 March, but the Congress of Deputies (Congreso de los Diputados) has until 8 April to debate and vote on it.
3. Criterion of the Social Security General Institute 5/2025, of 12 March, regarding the implementation of the Royal Decree-Law 11/2024, of 23 December, to improve the compatibility of the retirement pension with work
The new rules on the compatibility between retirement pensions and work, effective as of 1 April 2025, are established. They apply to the legal framework in force at the time when the compatible employment starts, regardless of the statutory scheme in force on the date of the event giving rise to the pension.
Pensioners whose retirement date was prior to 1 January 2022 are exempt from the requirement to delay access to retirement for one year in order to qualify for active retirement. However, in such cases, the initial percentage of the pension compatible with work will be 45%, increasing by 5% points for every 12 continuous months of active retirement, up to a maximum of 100%.
