I. Legislative News

The Spanish Parliament passed Law 15/2022, of 12 July, on equality of treatment and non-discrimination.

The Spanish Parliament has approved Law 15/2022, comprehensive for equal treatment and non-discrimination, which establishes a heterogeneous and transversal set of measures to guarantee real and effective equality and the prohibition of discrimination.

In this sense, in addition to the classic discriminatory elements, new ones are included, such as age, gender expression, illness or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language or the socio-economic situation.

In addition, new cases of discrimination are regulated, such as discrimination by association, discrimination by mistake or multiple discrimination.

The legislative text includes a series of particularities related to labour law, with specific measures in the field of employment and self-employment, as well as in collective negotiations. In this regard, for instance, any discriminatory conduct in terms of access to employment, training, professional promotion, pay, etc. is prohibited.

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II.         Case Law News

An employee may be disciplinarily dismissed for verbal abuse towards colleagues at Christmas dinner.

It is possible to disciplinarily dismiss an employee for acts which, even if carried out outside working hours, are related to the work activity. This is the statement made by the Supreme Court, which, revoking the appeal judgement, considers the dismissal of an employee, who verbally and physically insulted several colleagues at the company’s Christmas dinner, to be justified.

In this regard, the judgement underlines that “it is clear that the alleged conduct is affected by and linked to the employment relationship: it has an impact on other company colleagues, affecting the coexistence between them and the reputation of the employer itself”. Therefore, as it transcends the private relations between colleagues and has repercussions in corporate terms, “the disciplinary sanction of dismissal and its classification as fair” cannot be invalidated.

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The Supreme Court corrects its doctrine on the consequences of non-compliance with the prohibition on pro rata payment of extraordinary wages.

The Supreme Court has corrected its doctrine regarding the case of pro-rata payment of extraordinary wages, this possibility being expressly prohibited in the applicable collective agreement.

Thus, in the particular case subject to the proceedings, although the collective agreement expressly prohibited the possibility of pro rata payment of extraordinary wages, the company paid the employee that amount on a pro rata basis, not complying with the provisions of the agreement.

In this regard, the highest court, correcting its recent doctrine on this matter, states that non-compliance with the content of the collective agreement cannot give rise to a financial penalty, given that the agreement does not stipulate this specific sanction. Otherwise, according to the opinion of the court, the employee would be unjustly enriched.

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Voluntary early retirement is not available in the event of termination of the contract at the employee’s request due to serious and liable breach of contract by the employer.

The Supreme Court, reversing the appeal judgement, has held that early retirement for reasons not attributable to the employee (with more favourable access and financial conditions compared to voluntary retirement) is not available in those cases in which the dismissal has been terminated at the employee’s will in cases of serious and liable breach by the employer (such as, for instance, in cases of non-payment of wages).

In this regard, the Supreme Court recalls that the cases of access to involuntary early retirement, set out in article 207 General Social Security Act, constitute a “numerus clausus”, being provided only for cases of company restructuring that prevent the continuation of the employment relationship. Therefore, as the Supreme Court states, “the law excludes all other situations which give rise to the termination of the contract and which are also due to a cause not attributable to the employee”, which would include termination of the contract due to serious and liable breach of contract by the employer.

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