CMS Albiñana & Suárez de Lezo
CMS Albiñana & Suárez de Lezo is one of Spain’s leading multidisciplinary law firms. Present in Madrid, Barcelona and Seville, it combines a solid domestic presence and with an international reach, as part of CMS, a top global law firm which is present in 43 countries and boasts 77 offices worldwide.Show more
Corporate & Commercial
In several decisions, the Department of Legal Affairs has outlined the limits of the free-will principle for shareholders when setting the procedure and requirements for the preferential rights for purchasing shares in attachment cases. In a recent case concerning a bylaw relating to the applicable regime for transfers arising from the seizure of a company's shares, the department's decision allows for reflection on the true scope of the free-will principle for shareholders with respect to the compulsory transfer of shares.
This article – which is based on a recent study – provides insight into the legal provisions of M&A agreements across the European Union in 2020 and identifies key market trends. The study indicates a return to more 'buyer-friendly' positions on certain deal points, which may be a result of a more risk-averse environment prevailing due to the COVID-19 pandemic. For example, liability caps increased, limitation periods were longer and the application of de minimis and basket clauses flattened out.
Possible conflicts of interest in evaluation reports compiled by directors and evaluation methods used in takeoversSpain | 17 February 2021
The Supreme Court recently reached a decision concerning an appeal case against the National Court's annulment of a National Securities Market Commission agreement authorising a buy-out takeover. In particular, the Supreme Court took a stand on the potential conflicts of interest between the proposed evaluation report and the price offered in the takeover framework when the evaluation report is carried out by an independent expert.
Employment & Immigration
Since 2018 companies have had an obligation to guarantee employees' right to disconnect – that is, disengage from work-related electronic communications – in order to ensure that employees take daily and weekly rest periods and their annual leave. The Madrid High Court of Justice recently clarified that employees' right to disconnect does not prevent employers from requesting employees to provide services outside their usual working hours.
Although there have been some improvements for female employees in the labour market, the gender pay gap still persists in Spain. Thus, Spain recently passed two new laws which include several provisions that aim to guarantee equal pay between men and women, as well as a more detailed regulation regarding equality plans which are already in place.
The health crisis triggered by COVID-19 has accelerated the already existing trend of facilitating and implementing remote working policies in Spain. However, forced remote working as a result of the pandemic has emphasised the lack of regulation in this area, not to mention the practical issues previously left unresolved. Published on 23 September 2020, Royal Decree-Law 28/2020 on remote working seeks to provide clearer guidelines in this regard.
Employment-related measures to fight effects of COVID-19: regulatory update following lifting of state of emergencySpain | 05 August 2020
In order to illustrate the current status of the COVID-19 extraordinary measures following the lifting of the state of emergency on 21 June 2020, this article summarises the key employment-related measures adopted since the state of emergency was declared and the updated regulation of each measure following the numerous amendments introduced subsequent to Royal Decree-Law 8/2020.
The government has adopted several extraordinary employment-related measures in response to the COVID-19 pandemic. Moreover, since a state of emergency was declared, Spain's employment authorities have published countless guidelines and instructions relating to the practical application of such measures. This article summarises the key employment-related measures adopted since the state of emergency declaration.
The government recently published a royal decree-law on urgent and extraordinary measures to address the economic and social impact of COVID-19. The measures include clarification of the grounds and simplification of the procedures to suspend employment contracts or reduce working hours due to force majeure, as well as economic, technical, organisational or production grounds.
The Madrid High Court of Justice recently ruled that riders for Glovo (a competitor of Deliveroo with a similar business model) are employees and are thus not self-employed. As other courts have ruled in similar cases that riders who operate in the gig economy do not have an employment relationship with their company, this judgment will likely be appealed before the Supreme Court in an attempt to unify the case law on the nature of such relationships.
There has been a wave of criticism that the mandatory recording of employees' working hours has hindered the flexibility measures which companies were beginning to introduce. As such, it is somewhat surprising that a recent amendment to the Workers' Statute appears to have flown under the radar, especially given that it aims to boost flexibility in order to uphold employees' rights to a work-life balance.
Difference in severance for employees under service agreements and permanent employees is not discriminatorySpain | 14 August 2019
In a preliminary ruling in a case referred to it by the Galicia High Court, the European Court of Justice has confirmed the existence of objective grounds which justify a difference in compensation paid on the termination of works contracts linked to a specific service (ie, 12 days' salary) and the termination of permanent contracts (ie, 20 days' salary). The Galician court must now decide whether the early termination of a service agreement falls under Article 52 of the Workers' Statute.
The Pamplona Labour Court recently ruled in a case concerning an employee who had been dismissed on disciplinary grounds for his involvement in a fight with a colleague, which had been captured on the CCTV installed in the workplace car park. Notably, the CCTV evidence was admissible under the Data Protection Act. However, as the act does not align with European Court of Human Rights case law and the EU General Data Protection Regulation, the court refused to accept the footage as evidence.
Following the entry into force of Royal Decree 8/2019, companies are now required to record employees' working hours on a daily basis. This article addresses a number of key questions regarding this new obligation, including with regard to its scope, overtime, the recording system or method to be used and the applicable penalties.
The Royal Decree-Law on Urgent Measures to Guarantee Equal Treatment and Opportunities for Women and Men in Employment and Occupation recently came into force, amending the Workers Statute and the Equality Law. The decree-law, which applies to companies established in Spain, aims to improve gender equality between women and men, reinforce equal pay and enable parents to share childcare responsibilities.
A trade union recently filed a claim with the Castile and Leon High Court on behalf of 6,000 in-home carers, asking the court to declare that the time which the carers spent travelling between their home and their first and last clients of the day must be deemed working time in accordance with the applicable collective bargaining agreement. This is a controversial matter on which the Spanish labour courts have reached various conclusions.
The Supreme Court recently concluded that the implementation of individual redundancies which collectively exceed the applicable statutory thresholds should be carried out in accordance with the legal procedure for collective dismissals, even if agreements have been reached with employee representatives. This case was particularly complex due to the fact that the employment terminations had not been de facto implemented through a redundancy.
The new Data Protection Act has introduced a number of so-called 'digital rights' for employees. Prior to the act's entry into force, the Supreme Court and the Constitutional Court had already issued regulations on how employers could monitor employees using video, audio or geolocation surveillance, which were in line with European Court of Human Rights rulings. Although the new act has made no special amendments to the courts' regulations, it has provided a concrete legal framework in this regard.
The new Data Protection Act introduced a number of so-called 'digital rights' for employees, including a right to disconnect from their work devices. This right aims to guarantee employees' rest, leave and holiday time, as well as their right to personal and family privacy. The provision concerning how this right should be exercised is general. As such, the legislature has left it up to employers to define each employee's right to disconnect in their collective bargaining or employment agreement.
The new Data Protection Act recently entered into force, introducing a number of so-called 'digital rights'. The Spanish legal system already provides a framework regarding the use of digital devices at work and how employers can exercise control over them in view of employees' right to privacy. Although the act has introduced no significant changes in this regard, employees' right to privacy regarding the use of digital devices at work has now been set out in law.
The new Data Protection Act was recently published in the Official State Gazette, transposing the EU General Data Protection Regulation into Spanish law. In addition, the act has introduced a number of so-called 'digital rights' which directly concern employees, including the right to privacy in the use of technological devices at work and the right to disconnect from work.
The Navarre High Court recently held that an employer had been justified in dismissing an employee for taking her paid annual leave on dates that were unauthorised by the employer. Following this judgment, employees who ignore their employer's instructions regarding the period during which paid annual leave can be taken run the significant risk of being dismissed on disciplinary grounds for disobeying their employer's orders and breaching their contractual good faith obligation.
Supreme Court moves towards recognising employees' rights to reduce working hours for childcare purposesSpain | 26 September 2018
The employment courts recently expanded the scope of the rights and privileges granted to employees who exercise their right to request a reduction of their working hours, including to take care of a child under 12 years old. A recent Supreme Court decision represents another step forward in recognising these rights when employees are dismissed and the dismissal is declared null and void by an employment court.
Absenteeism costs Spanish companies approximately €77 billion a year and has become such a pressing issue that the Ministry of Finance has announced measures to combat it in the public sector. Companies must be proactive in implementing measures and controls to reduce absenteeism in order to raise employee awareness of such impact and enable them to avoid the implementation of coercive measures.
A recent judgment of the Andalusia High Court is the first decision in Spain to expressly declare that women and men are entitled to receive the same salary when performing similar functions and responsibilities, unless the company provides objective grounds, unrelated to gender, to justify the salary inequalities. It is advisable for companies to review their salary policies in order to identify employee remunerations that could be considered discriminatory.
The European Court of Human Rights recently ruled that the installation of hidden surveillance cameras by a Spanish company without informing its employees infringed Article 8 of the Convention of Human Rights and Fundamental Freedoms (employees' right to respect for privacy and human dignity). This ruling serves as a reminder that before installing hidden surveillance cameras, companies must analyse all of the applicable circumstances.