See some recent judgments of interest
Leave for own affairs
The Audiencia Nacional [AN 15-09-2022] declares that the own business days established by the collective agreement cannot be reduced in proportion to the time worked when the worker has been in a TI situation. This is due to the following reasons:
- During the TI situation, although there is no obligation to provide services and to pay for them, the contract is not terminated. Therefore, all other rights and obligations of the parties are maintained.
- The purpose of leave for personal matters in collective agreements is to provide workers with time for personal matters that cannot be carried out during their breaks, and in many cases the TI situation is also an impediment to carrying out such matters.
- The courts have reached the same conclusion in case of suspension of the employment relationship due to ERTE.
False time recording
The recording of a false working day is a breach of contractual good faith and a breach of trust, punishable by dismissal. The High Court of Justice of Madrid [TSJ Madrid 18-07-2022] has reiterated that the information reported in the daily work reports must be truthful and rigorous in order to fulfil its purpose of allowing company control, even if the agreement provides for flexible working hours.
A worker worked 100% of his working day as a teleworker, although his working hours were in accordance with the collective agreement. And the company found that, on at least three days, he recorded his working hours from 8:00 to 15:00 and yet he left his post to accompany his partner to a doctor’s appointment, go to the hairdresser’s, go shopping or wash his car without requesting permission or recording it in the register. The worker argued that he had always had flexible working hours, but the Court held that this did not exempt him from the obligation to record his actual working hours.
Damages for occupational disease
When the worker has successively provided services in different companies while being subject to the risk of acquiring an occupational disease, the liability for damages will not be joint and several, but will be shared in proportion to the time of service in each of them.
Confirming this criterion, the Supreme Court [SC 21-07-2022] points out the following points:
- In the case of an occupational disease, the causal event does not occur at a specific moment, but rather develops over time until the ailments are externalised.
- When the worker has provided services successively in the companies causing the damage or harm, it is possible to individualise the shared liability of each of them and the compensation for damages and harm according to the time during which the services were provided in each of them.