European Court of Justice Finds Spain's Breastfeeding Leave Statute Inconsistent with Equal Treatment Directive
Under Spanish Law, employed mothers shall be entitled, for the purpose of feeding an unweaned child under nine months of age, to take an hour off during each workday. In addition, the relevant law points out that breastfeeding leave may be taken by the mother or the father without distinction, provided that they are both employed (Section 37.4 Workers´ Statute).
The case in dispute derives from this last legal statement, whose interpretation has brought much confusion regarding breastfeeding before the Spanish labour courts. In the case considered, the employer rejected a male worker's request to enjoy such leave because the mother of the child was not employed, but self-employed. The High Court of Justice of Galicia wonders whether the right to leave should not be accorded to men in the same way as women, and whether the fact of restricting it to employed women and the fathers of their children is not a discriminatory measure contrary to the principle of equal treatment and to Directive 76/2007.
Continue Reading...Employer's Second Thoughts are Permitted in an Unjustified Dismissal
In a dispute recently litigated in Spain, the employer acknowledged that the discharge of the employee was unjustified and thus sought to pay severance. An indemnity package was offered, but the employee never accepted it. In turn, the employee filed suit alleging the amount to be paid should be higher, in conformity with seniority he had accrued. Eventually, the Madrid Superior Court confirmed the court of first instance's ruling by granting the employee's lawsuit.
The issue that truly came into play was that, after such decision, in conformity with Section 56.2 of the Workers' Statute Act, employers are--within five working days after the ruling being notified--legally entitled to pay proper severance or reinstate the employee in his last position with equal rights. In this regard, the Spanish Supreme Court has examined whether an employer's first stance to terminate an employee is binding, or whether a choice between severance payment or reinstatement is still possible.
Continue Reading...Supreme Court's New Counting Unit Criteria for Layoffs
In a ruling that sets case law in Spain, the Supreme Court ruled that counting unit criteria to undergo a collective dismissal procedure under the Workers' Statute Act is the total number of employees in the workforce instead of only those employees located in the affected location.
The decision is extraordinarily useful and sheds light on the statutory dilemma that companies have faced: while European Directive 98/59 sets forth the working place as a reference unit of counting, Section 51.1 of Spain's Workers' Statute Act provides that all employees in a company be counted.
Continue Reading...Dual Scale of Rights Upheld When Based on Objective and Reasonable Grounds
The Audiencia Nacional Employment Chamber judgment of 25 February 2009 confirmed the legality of the dual scale of rights (mainly in relation to salary) regulated by the current CLH (Tierra) collective bargaining agreement. This company originated from the State-owned company CAMPSA, which lost its oil monopoly under Law 34/92 and was forced to adapt to the oil sector legislation under European law, open to competition. This substantial change of circumstances resulted in the creation of a number of entities. The most important of these was CLH (Tierra), whose main activity is the distribution of liquid hydrocarbons in Spain through the management of oil pipelines.