Over the course of an employment relationship, circumstances may arise that result in changes to the terms of the contract relating to functional mobility, geographical mobility, and substantial modifications to working conditions.
Written by Josep Conesa
Employment and insolvency lawyer
FUNCTIONAL MOBILITY
WITHIN THE SAME PROFESSIONAL GROUP:
An employer may reassign an employee to a different role within the same company, provided the employee holds the academic or professional qualifications required for that position and belongs to the relevant professional group. Where professional groups have not been defined, functional mobility may take place between equivalent professional categories.
BETWEEN DIFFERENT PROFESSIONAL GROUPS OR CATEGORIES:
· Reassigning an employee across professional groups is only permissible where there are technical or organisational reasons to justify it, and only for as long as strictly necessary.
· Where the duties to be performed belong to a lower professional group or category, the reassignment must be justified by urgent or unforeseeable operational needs.
· Where the duties are above the employee's professional group or equivalent category, and have been performed for more than six months in any one year or more than eight months over two years, the employee may claim promotion, unless the applicable collective bargaining agreement provides otherwise or, in any event, subject to the vacancy-filling procedure in force at the company. Different promotion timeframes may be set through collective bargaining.
CHANGE OF DUTIES NOT AGREED IN THE CONTRACT:
Such a change requires agreement between the parties or, failing that, compliance with the rules governing substantial modifications to working conditions, or any rules established for this purpose in the applicable collective bargaining agreement.
EMPLOYEE REMUNERATION:
· If the work performed falls within a lower job grade or category, the remuneration shall be that of the original post.
· If the work performed falls within a higher job grade or equivalent category, the remuneration shall be that of the post being performed, where this is higher.
GENERAL PRINCIPLES:
· Functional mobility shall be carried out without prejudice to the employee's dignity, and without detriment to their training and career development.
· The company may not invoke the grounds for objective dismissal based on supervening incapacity or failure to adapt in cases where the employee has been required to perform functions other than their usual ones as a result of functional mobility.
· Where the company refuses to grant a promotion following the performance of higher-grade functions, the employee may, having first obtained a report from the Works Committee or, where applicable, the staff delegates, bring a claim before the employment tribunal.
COLLECTIVE SUBSTANTIAL CHANGES TO WORKING CONDITIONS.
WHEN DO CHANGES HAVE A COLLECTIVE CHARACTER?
· When they relate to working conditions recognised by virtue of a collective agreement or pact, or enjoyed by virtue of a unilateral decision by the employer with collective effect.
· Changes to working functions and working hours shall not be considered collective modifications where, within a ninety-day period, they affect fewer employees than:
· Ten employees, in companies with fewer than one hundred employees.
· 10% of the total workforce of the company, in companies with between one hundred and three hundred employees.
· Thirty employees, in companies with three hundred or more employees.
EMPLOYER'S PROCEDURE:
· Opening of a consultation period with the employees' legal representatives, lasting no fewer than fifteen days.
· Once the consultation period has ended, the employer shall notify the affected employees of its decision regarding the change, with at least 30 days' notice prior to the effective date.
· Changes to conditions established in collective bargaining agreements may only be made by agreement between the company and employee representatives, and solely with regard to the following matters: working hours, shift arrangements, remuneration systems, and work performance systems.
CONSULTATION PERIOD:
· Any decision to make a collective substantial change to working conditions must be preceded by a consultation period with the workers' legal representatives, lasting no less than fifteen days.
· The consultation period must cover the grounds underlying the employer's decision and the possibility of avoiding or mitigating its effects, as well as the measures needed to minimise the consequences for the affected employees.
· During the consultation period, both parties must negotiate in good faith with a view to reaching an agreement.
· Any such agreement requires the approval of the majority of members of the company's Works Committee or Committees, of the staff delegates (where applicable), or of the trade union representatives (where present), who together must represent the majority of those affected.
· Once the consultation period has ended, the employer must notify the employees of its decision regarding the change.
EMPLOYEES' OPTIONS:
· Accept the change.
· Exercise their individual right to terminate their employment relationship with the company before the effective date of the employer's decision, where they are adversely affected and the changes relate to:
· Working hours
· Work schedule
· Shift arrangements
In these cases, 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.
· Terminate their employment contract through the relevant constructive dismissal procedure — i.e., termination at the employee's initiative — where the substantial changes to working conditions are detrimental to their professional development or undermine their dignity. Compensation in this case would be that applicable to unfair dismissal (45 days' salary per year of service, up to a maximum of 42 monthly instalments).
· Bring a collective dispute claim. The lodging of such a claim will suspend the processing of any individual actions until the dispute is resolved.
THE LUNCH BREAK.
When theory meets practice, substantial changes to working conditions arise in situations as everyday as the lunch break. This can be considered an essential element of the employment relationship. Altering the break time granted to employees may constitute a substantial modification of working conditions.
Something as commonplace as employees enjoying 25 minutes of break time included within their effective working hours can be a fundamental element of the employment relationship — to the extent that if the company considers excluding it from effective working hours, several consequences may follow.
The Workers' Statute provides that 'whenever the duration of a continuous daily working day exceeds 6 hours, a rest period of no less than 15 minutes must be established during that time. This rest period shall be considered effective working time where so provided or established by collective bargaining agreement or employment contract.
In the case of workers under 18 years of age, the rest period shall have a minimum duration of 30 minutes and must always be established where the duration of a continuous daily working day exceeds 4 and a half hours.'
Accordingly, and assuming that the collective bargaining agreement contains no specific provision regarding the break, it could initially be concluded that employees wishing to take such a rest break may do so provided their daily working hours are continuous and exceed 6 hours, and the break would not be considered effective working time, unless the employment contract provides otherwise.
Notwithstanding the above, in the specific situation under consideration — where employees of the company have been enjoying a daily 25-minute break counted as part of their effective working hours — the unilateral removal of that break by the company, or its exclusion from effective working hours, could be considered a substantial modification of working conditions, or the removal of a more favourable condition already acquired by the employees, since the working day would effectively be extended by the duration of the break.
POSSIBLE CONSEQUENCES OF REMOVING THE LUNCH BREAK.
Following such a modification, employees would be entitled to challenge the employer's decision with a view to being restored to their previous working conditions. They could also terminate their contract on grounds of a change to working hours, schedule, or shift arrangements, with the right to receive compensation of 20 days' salary per year of service, up to a maximum of 9 months. Additionally, they may seek to terminate the contract on the grounds of harm to their professional development or damage to the employee's dignity, with the right to receive compensation of 45 days' salary per year of service, up to a maximum of 42 months.
PROCEDURE TO EXCLUDE BREAKS FROM working hours.
The company must demonstrate the existence of economic, technical, organisational or production-related grounds justifying the measures to remove the break period or exclude it from effective working time, and that such a measure would help improve the company's situation.
The procedure for substantial modifications to working conditions differs depending on whether the changes are individual or collective in nature. A collective modification arises where the changes affect 10 or more employees in companies with fewer than 100 employees, in which case the procedure to be followed is as set out below:
1.- Prior written notification by the employer to employee representatives of the proposed modification and the commencement of a consultation period.
2.- A consultation period of no less than 15 days.
3.- Once the consultation period has concluded — whether or not agreement has been reached — the employer must notify the affected employees of its decision at least 30 days before the changes take effect.
