Holidays, teleworking, video surveillance or discrimination... the sentences that will impact companies in 2023

• The Supreme Court declares null and void the dismissal of a worker who was fired one day after asking to be paid for overtime

The

has been one of the most active bodies in

with sentences that will have an

-in many cases economic- on

, to which are added the issued by national courts last year and which must be closely followed by companies and workers in the country.

"It is a trend that has manifested itself in 2022:

and in the

job market

from a legal point of view.

It will have a leading role, especially in matters of s

.

It is going to be increasingly important when it comes to interpreting regulations, because Spain is also the country that presents the most preliminary rulings in the CJEU," he explained to this outlet.

partner responsible for labor

.

Vacation claim

Among the judgments issued by this Court last year, those relating to the

.

Specifically, in November, the CJEU considered that the right of a worker to claim the

annual than

they do not prescribe, unless the company demonstrates that it has proactively tried to ensure that the worker enjoys the holidays.

"The CJEU opens the door with this ruling, for example, to all the false self-employed workers who are recognized as an employment relationship, can demand economic compensation for all the vacations they have not enjoyed. If that employment relationship goes back fifteen years, would be the vacations of that entire period, which would mean

", they point out from the labor department of

To avoid this possible contingency, they recommend that companies include in employment contracts a

and that they actively remind employees when that right ends and invite them to enjoy them.

Obligation to provide glasses or contact lenses

The CJEU also issued a judgment in September in which it established that

for work as long as medical examinations show that they are necessary and even if viewing screens in the workplace is not the direct cause of that visual impairment.

"The CJEU ruling is very clear, but Spanish legislation includes in the Technical Prevention Guide that the special corrective devices that must be provided to the worker

It expressly says that devices used for myopia, astigmatism, presbyopia, etc. are not considered of this type.

Right now

glasses to the employee in general, but this

.

The normal thing is that everything continues as before, but a court could say the opposite if a worker or a union appeals a sentence alleging that, according to the CJEU sentence, it should be provided, "explains the Baker expert.

age limits

The

in the world of work is another major issue on which an increase in jurisprudence is expected.

In this regard, on November 17, the CJEU analyzed an event that occurred in the

, but that could be extrapolated to the private sector, in which

participate in a

to cover 19 positions of psychological technical commissioner of the National Police.

This age limit was considered discriminatory and contrary to European legislation, since there was no argument to justify it, such as the need to meet certain physical strength requirements specific to that age group.

telecommuting compensation

The National Court has also ruled on the

.

Given that the Distance Work Law obliges companies to compensate the expenses incurred by the employee by teleworking from his home, the Court considered

a

of a contract in which he

for the worker and that, in the event that it produced it,

by not having to travel to the workplace.

Although this provision is accepted by both the company and the worker, the Court considers that it is void and contrary to law, since teleworking expenses must be listed and quantified so that they are compensated by the company, regardless of whether the employee saves or not by staying at home.

The sentence has been appealed before the Supreme Court.

dismissal for complaints

Another relevant sentence for companies and workers is the one issued by the Supreme Court in November, when it declared null and void the

with a temporary contract that days before receiving the dismissal letter

he had claimed to the company via whatsapp that he be paid overtime

that he had done

David Díaz, from Baker, warns that this sentence can set a

, as there are workers who sense that they may be fired and try to make a complaint the days before, in order to later allege that they have been discriminated against and dismissed due to that claim.

"In these cases, the company must give reasons for the dismissal and explain why that worker is dismissed and not another," he points out.

Medical sick leave

Different sentences of 2022 declare the

when it is understood that discrimination has occurred when choosing the sick worker and not another to terminate his contract.

"Disability is grounds for null dismissal. Illness is not a cause of discrimination that gives rise to null dismissal, unless that illness can be equated to disability -when it is long-lasting and leaves sequelae to the employee-", explain the experts from GA&P.

The terminated employee, however,

although there have been rulings, such as the one issued by the Gijón Labor Court in November, in which, without the worker having requested it, the Court itself claims compensation of 3,500 euros for the dismissed person, they add.

Video surveillance and telephone conversations

In general terms, a company may only dismiss a worker for a proven cause with a

if there was one

solid enough to place that camera hidden from the worker.

However, if there is no suspicion, the

has stipulated that a company may use

(not hidden) to sanction an employee or even fire him, provided there is proportionality, suitability and necessity.

The sentence, however, was approved with a narrow margin by the full TC (6 votes in favor and 5 against), when it had a conservative majority, hence the lawyers consulted by this means do not rule out a change of criteria in the future.

Wages in reduced working hours

The Supreme Court has determined that workers with

cannot suffer a cut in the

that some companies have enabled

, since they are supplements that do not depend on the number of hours worked.

It also considers that this matter should be judged from a gender perspective, given that it is mostly women who take less time to care for children or dependents.

"These types of sentences touch on issues, such as discrimination based on sex and age, which are going to be a constant. Its importance will go

, says the partner of Baker McKenzie.

Deliver medical reports

The National Court declared void the obligation imposed by a company on the workers of

in which they were requested

.

"The business mandate exceeds the simple obligation to deliver said part to the employer, by forcing the worker to collaborate in its computer processing," they point out from GA&P.

"The Court considers that the report can be delivered in person, by ordinary mail or even by WhatsApp, but in this specific case there was an application that required more data to be entered and it was considered a

", says the Baker expert.

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