Pérez-Llorca held a webinar to analyse the main measures businesses should adopt to manage a return to the workplace that protects the health, safety and privacy of employees, the flexibility of temporary workplace restructuring plans (“ERTEs”) with regard to removing employees from such plans, and the consequences of any breach of employment guarantees by employers.
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Luis Enrique Fernández Pallarés, a partner in Pérez-Llorca’s Employment practice, opened the session. He began by interpreting the scope and duration of the preferential nature of working from home and discussing the possibility of returning to the workplace during the COVID-19 crisis. In particular, Fernández Pallarés explained that the fact that Royal Decree-law 8/2020 expressly mentions working from home does not mean that it is the only organisational measure that can be used to regulate the current transitional phase of this exceptional health situation, as there are other mechanisms aimed at resuming activity and employment relationships once it has concluded. He stressed that, should they opt for a return to the workplace, companies must implement “return plans” in order to comply with regulations regarding occupational risk prevention and avoid the imposition of penalties and future liabilities.
Daniel Cifuentes followed, analysing companies’ implementation of employee control measures from the perspective of risk prevention, data protection, and respecting and guaranteeing employees’ privacy. The Pérez-Llorca partner stressed that the key element to analyse would be the one related to employees’ privacy. In Cifuentes’ opinion, the current health crisis does not appear to justify that the proportionality test has been passed as regards any control measures to be implemented. Therefore, such measures should preferably be voluntary.
Isabel Moya then focused on the current situation of temporary workplace restructuring plans (“ERTEs”) and their future regulation. The Pérez-Llorca partner was in favour of subsequently including or removing employees included in an ERTE due to force majeure, as long as any subsequent inclusion is still due to force majeure and not for productive reasons. She also maintained that, with ERTEs for productive reasons, the matter could be resolved if this possibility had been agreed in the Monitoring Committee, and that the conditions under which it was agreed were particularly important in this regard.
To conclude the virtual meeting, Laura Pérez stressed that the termination of employment contracts on the basis of the COVID-19 crisis is not permitted. However, collective dismissals can be carried out should their origin differ from the above, as can individual disciplinary dismissals or dismissals for objective reasons. Additionally, the partner from Pérez-Llorca’s Employment practice stated that, despite the regulation not specifying whether a dismissal carried out for reasons related to COVID-19 would be deemed unfair (improcedente) or invalid (nulo), the predominant interpretation is that it would be unfair, with the assumption of the costs that this entails.
Lastly, and regarding the commitment to maintaining employment for a period of six months following the resumption of activity, Pérez explained that this commitment would not be considered to have been breached when the reasons for being unable to maintain employment are unrelated to the health crisis. She also noted the majority view that the consequence of failing to uphold this commitment would be that the company would need to pay back all the social security contributions it did not pay during the validity of the ERTE due to force majeure.