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FUNCTIONAL MOBILITY:
An employer may modify an employee's duties either within the same professional group or across different professional groups or categories.
Within the same professional group: An employer may reassign an employee within a company, provided 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, functional mobility may take place between equivalent professional categories.
Across different professional categories: For functional mobility to apply in this scenario, the following conditions must be met:
· Functional mobility is only permissible where there are genuine technical or organisational reasons to justify it. Furthermore, it may only last for as long as strictly necessary to address those reasons.
· Where the duties to be performed fall within a lower professional group, this must be justified by unforeseeable and temporary operational needs.
· Where the new duties are at a higher level than the employee's existing category, and those duties are performed for more than 6 months in any one year or more than 8 months over two years, the employee may claim promotion.
Any change of duties not covered by the above provisions or otherwise agreed upon will require the consent of both parties.
EMPLOYEE REMUNERATION:
Where the work performed falls within a lower professional group or category, the employee retains the salary of their original post.
Where the work performed falls within a higher professional group or an equivalent category, the employee is entitled to the salary of the post they are carrying out.
GENERAL PRINCIPLES:
· Functional mobility must be carried out without undermining the employee's dignity and without prejudice to their training and professional development.
· The company may not invoke objective dismissal on grounds of supervening incapacity or failure to adapt where the employee has been performing duties other than their usual ones as a result of functional mobility.
· If the company refuses to grant a promotion despite the employee having performed higher-level duties, the employee may bring a claim before the employment tribunal (following a report from the works council or, where applicable, the staff delegates).
GEOGRAPHICAL MOBILITY:
Geographical mobility occurs when an employee is transferred or relocated to another workplace in a different location, requiring them to change their place of residence.
TRANSFER:
A transfer refers to a situation where the employee was not specifically hired to work at mobile or itinerant workplaces. A transfer is deemed to occur when an employee is assigned to a different workplace within the same company that requires a permanent change of residence, or when a temporary relocation exceeds 12 months within a 3-year period.
Case law has established that a transfer exists where the following conditions are met:
- the new workplace is more than 30 kilometres from the employee's home address;
- the daily commute time accounts for more than 25% of the standard working hours (i.e., 2 hours based on an 8-hour working day); and
- the associated costs exceed 20% of the salary.
Grounds for transfer:
A transfer must be justified on one of the following grounds: economic, technical, organisational, production-related, or arising from contracts linked to the company's business activity.
These grounds will be considered to exist where the measures proposed contribute to improving the company's situation through a better organisation of resources, thereby strengthening its competitive position in the market.
Employee representatives shall have priority in retaining their positions.
1.- INDIVIDUAL TRANSFER:
Employer's obligations:
The employer must notify the affected employee of the transfer at least 30 days before the transfer takes effect. The employer must also notify the employees' legal representatives of this decision.
Employee's options:
The employee may choose between:
· Accepting the transfer, and receiving compensation for any expenses incurred as a result, including those of dependent family members, on terms agreed between the parties, which may not fall below the minimums set out in the applicable collective bargaining agreement.
· Requesting termination of the employment relationship, and receiving severance pay of 20 days' pay per year of service, with periods of less than one year prorated by month, up to a maximum of 12 monthly instalments.
· If the employee disagrees with the employer's decision, they may challenge it before the employment tribunal. The ruling will declare the transfer either justified or unjustified. If the transfer is found to be unjustified, the ruling will recognise the employee's right to be reinstated at their original workplace.
2.- COLLECTIVE TRANSFER OF EMPLOYEES:
A transfer is considered collective when it affects all employees at a given workplace, provided that workplace employs more than 5 workers. It also qualifies as collective when, without affecting the entire workplace, it affects, within a 90-day period, at least:
· 10 employees, in companies with fewer than 100 employees.
· 10% of the total workforce, in companies employing between 100 and 300 employees.
· 30 employees, in companys employing 300 or more employees.
Employer's obligations:
The employer must comply with the following requirements:
1.- Opening of a consultation period with employee representatives, lasting no less than 15 days. During this period, the employer must set out the reasons behind the decision and explore ways to avoid or mitigate its impact on the affected employees.
2.- Notification of the opening of the consultation period and of the parties' respective positions to the competent Labour Authority.
3.- Notification to employees of the transfer decision, following the end of the consultation period, with at least 30 days' notice before the transfer takes effect.
Where an employer attempts to circumvent the procedure established for this type of transfer, the transfer will be deemed to have been carried out in breach of the law and will be declared null and void.
3.- TEMPORARY POSTINGS:
Companies may temporarily post their employees to other work locations that require them to reside away from their usual place of residence, for economic, technical, organisational or production-related reasons, or in connection with the company's business activities, provided that the posting does not exceed 12 months within any 3-year period.
company's obligations:
The company must notify the affected employee of the posting with sufficient advance notice before it takes effect, which must be no less than 5 working days where the posting is to last more than 3 months.
employee's options:
Once notified of the posting,
the employee may choose to:
· Accept the posting, and receive from the employer their salary, travel expenses and per diems. Where the posting lasts more than 3 months, the employee will be entitled to 4 working days' leave at their home location for every 3 months of posting.
· If they disagree, the employee may challenge the employer's decision before the employment tribunal.
4.- POSTING OF WORKERS TO SPAIN: TRANSNATIONAL SERVICE PROVISION:
Employers must guarantee working conditions for employees temporarily posted to Spain.
Companies affected:
This obligation applies to all companies established in a European Union Member State or in a signatory state to the Agreement on the European Economic Area that temporarily post workers to Spain in the context of transnational service provision.
Employer obligations:
Workers posted to Spain are entitled to have the following working conditions, as set out under Spanish law, guaranteed by their company:
· working hours, overtime, night work, weekly rest periods and public holidays.
· Annual leave.
· salary
· Non-discrimination on grounds of sex, origin, marital status, language, opinion...
· Child labour protections.
· Right to strike, assembly and trade union membership.
· Occupational health and safety.
· Maternity and pregnancy protection.
Notification of posting:
The company must notify the competent Labour Authority for the relevant territory of the posting of workers, providing the following details:
· Identification of the company, including its registered address and tax identification number.
· Personal and professional details of the posted workers.
· Identification of the company(s) where the posted workers will provide their services.
· Start date and anticipated duration of the posting.
· Description of the services the company will carry out.
If the company posting workers to Spain is a temporary employment agency, it must also include in the notification evidence that it meets the legal requirements in its home country for the temporary supply of workers to a user company.
5.- POSTING OF WORKERS BY COMPANIES ESTABLISHED IN SPAIN:
Obligations of companies:
Companies established in Spain that temporarily post their workers to the territory of EU Member States or signatory states of the Agreement on the European Economic Area must guarantee those workers the working conditions applicable in the host country. This applies without prejudice to any more favourable working conditions arising from the legislation governing their employment contract or their collective bargaining agreement.
