Written by Josep Conesa
Employment and insolvency lawyer
1. SUBSTANTIAL MODIFICATION OF THE employment contract (MSCT) ON ETOP GROUNDS
For a modification to qualify as 'substantial', it must affect one or more of the following matters:
· Working hours
· Work schedule
· Shift work arrangements
· Remuneration system
· Work and performance system
· The employee's duties, where the limits of functional mobility are exceeded.
What options does the employee have if they do not agree with the modification in accordance with? There are four possibilities:
1º) Accept the employer's decision.
2º) Terminate the employment relationship before the modification takes effect, provided the employee is adversely affected and the modification relates to working hours, work schedule, or shift arrangements. In this case, the employee is entitled to compensation of 20 days' salary per year of service, with periods of less than one year prorated by month, up to a maximum of 9 months.
3º) Challenge the modification before the employment tribunal, without prejudice to the modification taking effect within the established timeframe. If the court declares the modification unjustified, the employee must be reinstated to their previous conditions; should the employer refuse, the employee may be entitled to the maximum compensation of 45 days per year worked, up to a maximum of 42 monthly instalments.
4º) Rescind the contract where the modifications are detrimental to the employee's professional development or undermine their dignity, in which case the employee may claim the maximum compensation applicable to unfair dismissal. Such rescission must be sought by lodging the corresponding claim before the employment tribunal.
The deadline to challenge this modification by the company is 20 days from the date it is communicated, even if the formal requirements have not been met, in accordance with the ruling of the Supreme Court 3325/2018.
2. GEOGRAPHICAL MOBILITY
This covers situations where a change of workplace requires the employee to change their place of residence as a result of a decision taken by the employer.
Within geographical mobility, a distinction must be drawn between:
1.- Permanent transfers: These require, as an essential condition, that there be economic, technical, organisational or production-related reasons to justify them, in such a way that they contribute to improving the company's situation by strengthening its competitive position in the market or enabling it to better meet the demands of the claim.
In such cases, the employer is required to notify the affected employee and their legal representatives at least 30 days before the transfer takes effect. The notification must specify the workplace to which the employee is being transferred, the reasons for the transfer, and the date from which it is to take effect. Where the transfer is collective in nature, a prior consultation period and a decision by the relevant labour authority are required.
Once notified of the transfer, the employee may choose either to accept it — in which case they are entitled to a reimbursement of expenses — or to terminate the employment contract, thereby ending the employment relationship, with entitlement to severance pay of 20 days' salary per year of service, as well as the right to claim unemployment benefit.
2.- Temporary postings: Unlike permanent transfers, these are temporary in nature and do not require the employee to change their permanent place of residence. Temporariness is defined as a period not exceeding 12 months within any 3-year period; postings that exceed this limit are treated in all respects as permanent transfers.
The employer must give the employee sufficient advance notice, and where the posting exceeds 3 months, this notice period must be no less than 5 working days. From that point, the employer must reimburse the employee for per diems and travel expenses. In addition, where the posting exceeds 3 months, the employee is entitled to 4 working days' leave at their home address for every 3 months spent on posting.
If the mobility measure is not in accordance with the applicable requirements, the employee may challenge the decision within 20 working days of receiving notification (ruling of the TS, Justice Ignacio García-Perrote Escartín, 12 May 2021), by bringing a claim before the competent employment tribunal, on grounds such as the violation of a fundamental right, failure to comply with the formal requirements governing such a change, lack of justification for the measure, and so forth.
3. FUNCTIONAL MOBILITY
The functional mobility of an employee within a company may be implemented by the employer, provided that the employee holds the academic or professional qualifications required for the role and belongs to the relevant professional group. Where professional groups have not been defined, mobility may be carried out between equivalent professional categories.
Where mobility involves different professional groups or categories, it is only permissible where there are technical or organisational reasons to justify it, and only for as long as strictly necessary. If the duties to be performed are of a lower category or group, this must be justified by urgent or unforeseeable operational needs. If the duties are of a higher group or category and are performed for more than six months in any one year, or more than eight months over two years, the employee may claim a promotion, unless the applicable collective bargaining agreement provides otherwise.
As regards the employee's remuneration: where the work performed is of a lower category, the employee retains the salary attached to their original post; where it is of a higher category, they are entitled to the salary corresponding to the post actually performed.
Functional mobility must be carried out without prejudice to the employee's dignity or to their training and career development. The company may not invoke objective dismissal grounds based on supervening incompetence or failure to adapt.
Where the above requirements are not met, a substantial modification of working conditions may be deemed to have occurred, which would entitle the employee to request, within one year, termination of their contract with the maximum severance pay. Where the company refuses to grant a promotion despite the employee having performed higher-level duties, the employee may — following a report from the works council or, where applicable, the staff delegates — bring a claim before the employment tribunal.
4. SUSPENSION OF CONTRACT
A suspension of contract is a temporary interruption of the employment relationship without bringing it to an end, such that the parties' mutual obligations — to work and to pay — are suspended for a defined period of time.
Grounds for suspension include the following: mutual agreement of the parties; grounds validly set out in the contract; temporary disability (IT); maternity or paternity leave; risk during pregnancy for the female worker; adoption or pre-adoptive or permanent fostering of children under 6 years of age; deprivation of liberty; etc.
The employee has the right to return to work once the circumstances that gave rise to the suspension have ceased. The period within which they must return will depend on the cause of the suspension.
5. LEAVE OF ABSENCE
This is a specific type of employment contract suspension, requested by the employee. It may take the following forms:
1.- Compulsory leave of absence: The company is obliged to grant this when the employee is appointed to a public office or takes on trade union functions at provincial level or above. The company must keep the position open, and the period of absence counts towards seniority. The employee must request reinstatement within one month of the circumstances giving rise to the leave coming to an end.
2.- Voluntary leave of absence: This requires a minimum of one year's seniority with the company, and may last between two and five years. There is no guaranteed right to return to the same post; instead, the employee has a preferential right to re-entry when a vacancy arises. Furthermore, this right may only be exercised again by the same employee if at least four years have elapsed since the end of the previous leave of absence.
3.- Leave of absence for the care of a biological or adopted child: This may last up to a maximum of three years per child — whether biological, adopted, or fostered (whether under a permanent or pre-adoptive arrangement) — calculated from the date of birth or, as applicable, from the date of the relevant judicial or administrative decision.
A employee is also entitled to one year's leave of absence — which may be extended by collective bargaining agreement — to care for a family member up to the second degree of consanguinity or affinity who, by reason of age, accident, or illness, is unable to care for themselves and is not engaged in paid employment.
The period during which the employee is on leave of absence counts towards seniority, and the employee is entitled to attend vocational training courses, to which they must be invited by their employer — particularly upon returning to work. During the first year, the right to have their specific post held open is guaranteed. After that period, the right to return is limited to a position within the same professional group or job category.
In any event, it is clearly advisable to seek professional advice on the best course of action should any modification of working conditions be required.
