1.- RELATED TO THE VERIFICATION OF THE EXISTENCE OF FORCE MAJEURE CAUSE DEADLINES FOR NOTIFICATION OF THE EXPRESS RESOLUTION(you can download the article in pdf here).

• AN Sala de lo Social, judgment 38/2020 dated June 25, 2020, in which, after filing a collective dispute claim for the collective challenge to the suspension of employment contracts due to force majeure and for which the suspension measure agreed by the company is declared null or unjustified, the Chamber affirms that “it is must respect the content of the authorizing administrative resolution insofar as it has not been challenged, annulled or a resolution has been issued suspending its enforceability and, thus, the claim must be dismissed because the business decision conforms to the authorized terms by the Administration ”.

• TSJ Madrid, Social Chamber, judgment 901/2020 dated November 24, 2020, according to which the Chamber understands that one thing is that the labor authority in the procedures of suspension of contracts and reduction of working hours due to force majeure must issue a resolution within five days from the request, by virtue of art. 22 RD Law 8/2020, and a different one that must be interpreted that the period of 5 days included in the aforementioned article 22 of Royal Decree-Law 8/2020 to issue that resolution also operates for the notification of the same, since in no case moment includes that there is a single common term to dictate and notify the administrative resolution.

2.- ADOPTION OF PRECAUTIONARY MEASURES IN THE FRAMEWORK OF COVID-19

• ATS, Administrative Litigation Chamber, dated March 31, 2020and through which the precautionary measure is denied, an unprecedented part, requested by the State Confederation of Medical Unions due to the inactivity of the Ministry of Health in relation to the breach of art. 12.4 of Royal Decree 463/2020 and because the constitutional right to physical integrity has been violated; The Chamber understands that the defendant Administration must be heard, since there is insufficient data to argue such inactivity.

• Social Court 34 Madrid, Order dated April 30, 2020 and in which the precautionary measure is denied, an unprecedented part, requested by the Unified Police Union on the grounds that the requested measures would not justify the urgency that could give rise to the adoption of precautionary measure in the absence of the defendant Administration, not attending either the appearance of good law on the part of the plaintiff union, since the regulations on the prevention of occupational risks invoked do not apply to the assumption of the health emergency that led to the declaration of the state of alarm and as a result of the resulting health crisis of Covid 19.

3.- RELATED TO THE COLLECTIVE CHALLENGE OF THE SUSPENSION OF EMPLOYMENT CONTRACTS.

• Social Court 4 Valladolid, judgment of April 20, 2020 , which inadmises the claim due to the lack of exhaustion of the prior administrative procedure.

• Social Court 1 Zamora, judgment of April 27, 2020 , which denies the ERTE to a legal advice company, on the understanding that it is one of the essential activities that is not within the activities suspended by Royal Decree 463/2020, which declares the state of alarm.

• Social Court 1 Ávila, judgment of May 13, 2020 , which dismisses the claim because there is no evidence regarding the lack of supplies necessary for the development of the activity, to which the company refers in its administrative request. It is unknown what type or class of supply necessary for the development of the company's activity are those that are not received. Therefore, the administrative resolution that denies the suspension of the employment contracts of the company's staff, due to force majeure, is adjusted to the law.

• Social Court 1 Ávila, judgment of May 28, 2020 , which dismisses the lawsuit because the impact on the plaintiff's activity of the decision made by one of its clients to close the premises and to suspend the sales campaign for clinical-dental care, does not fit into any of the called instrumental means for the loss of activity, to which the art refers exhaustively. 22.1 of Royal Decree Law 8/2020. The plaintiff uses, for the loss of the activity, in the decisions of closure or suspension of activities carried out by her client. Said circumstances cannot serve as the basis for the request for an ERTE with cause in art. 22 RD Law 8/2020, without prejudice to the fact that they may be agreed through art. 23 RD Law 8/2020.

• Social Court 2 of Burgos, judgment of June 1, 2020 , which dismisses the lawsuit because it considers the business decision to adopt the measure of temporary suspension of employment contracts being challenged justified, the existing situation in the company having been aggravated with the stoppage of activity generated by COVID-19 in the terms expressed, there being no reason that may imply the existence of discrimination in the choice of the affected workers, including the Workers' Representatives, since said choice, which is a business faculty, is motivated by the productive needs affected, not concurring any circumstance that allows to declare the nullity of the adopted measure.

• Social Court 1 Murcia, sentence of June 1, 2020 , which determines the validity of the ERTE adopted in a transport company, although the business activity does not fit into the list of activities for which the Government decreed its closure.

• Social Court 7 Valencia, sentence June 8, 2020 , which establishes the priority of permanence of the workers' representatives, although it is not contrary to the law to include them all in the ERTE if force majeure is justified, in this case and, therefore, the measure adopted by the company is justified .

• National High Court, judgment of June 15, 2020 , which dismisses the claim on the grounds that the content of the administrative resolution must be respected insofar as it has not been challenged, annulled or a resolution has been issued suspending its enforceability. The business decision is adjusted to the terms authorized by the Administration, since the disagreement with such terms of the authorization will have to be implemented by challenging the administrative resolution through art. 151. LRJS.

• National High Court, judgment of June 16, 2020 , and on the basis of which the validity of ERTE is declared due to force majeure, followed by an ERTE due to ETOP causes in a contact center company. It is perfectly admissible that, as a consequence of the damaging economic effects generated as a result of the situation derived from the state of alarm declared by the Government for the management of COVID-19, the company could turn to the workers not covered by the administrative resolution, to the adoption of the extraordinary internal flexibility measures contained in article 23 of RD 8/2020.

• National High Court, judgment of June 24, 2020 , by virtue of which the claim is dismissed because the indications of violation of the rights adduced by the plaintiffs have been disproved as the company's workforce, prior to the ERTE, experienced a progressive and sustained reduction, in accordance with the requirements of the doctrine of the Supreme Court.

• Social Court 1 León, judgment of July 3, 2020 , understands that it is appropriate to reject the nullity of the contested business decision and declare it justified, with the full dismissal of the claim, since the defendant company is included in one of the exceptions of the application of this, provided for in section 6 of the art. 34 RD Law 8/2020, which is the one provided for in letter c) of the aforementioned section 6 that excludes "... service or supply contracts necessary to guarantee the mobility and security of transport infrastructure and services ..." .

• Social Court 1 of León, judgment dated July 14, 2020 , which, estimating the demand, declares the business decision null because the employer is the Public Administration, which is why Additional Provision 17 of the ET is mandatory, which excludes the application to it of the internal flexibility measures contemplated in art. 47 ET; and, having understood the contested Resolution in this way, it must be confirmed, as it is in accordance with the Law.

4.- CHALLENGE OF RESOLUTIONS OF THE LABOR AUTHORITY

• Social Court 6 Oviedo, judgment of April 27, 2020 , analyzes the assumption of the main and auxiliary company, estimating the demand presented because the facilities of the main company have been closed, so that the defendant was unable to continue with its activity; and such loss of activity of the auxiliary company (not the main one) may be due either to its inclusion in the list contained in RD 463/2020, or for any other reason that has a direct relationship with COVID- 19, provided that in both cases this causes a suspension or cancellation of activities (which is also the case).

• Social Court 1 Valladolid, judgment of April 30, 2020 , estimates the demand of the company to understand, there is enough cause to revoke the appealed administrative resolution, since section 3 of article 10 of RD 463/2020, decreed the suspension of the opening to the public of museums, monuments, premises and establishments dedicated to public shows, sports and leisure activities. By dedicating the company to the online sale of tickets for these activities, it must be understood that it has run out of the raw material to be able to carry out its work in the market, since it cannot, while the state of alarm lasts and such restrictions persist, exercise their activity.

• Social Court 1 Salamanca, judgment of May 5, 2020 , estimating the demand raised, understands that it is appropriate to assess the concurrence of force majeure alleged by the company, which will undoubtedly contribute to lessen the negative impact that this situation is generating both for the workers affected, avoiding the termination of employment contracts. work, as well as for the company contributing to its viability, which was the intended purpose of the specific regulations generated as a result of COVID-19. For this reason, the existence of the higher court raised is confirmed.

• Social Court 3 Burgos, judgment of May 8, 2020 , which estimates the demand given that the activity of the lawyer for whom the worker provides services has been suspended and paralyzed practically in its entirety, as a consequence of the almost paralysis of the jurisdictional activity, except for essential services by the declaration of the state alarm derived from COVID-19, the co-defendant worker has been unable to continue performing her job, thus resulting in meeting the criteria required in the applicable regulations, since there is an objective impossibility of continuing to provide services, and it has been consequence of the cancellation of activities due to COVID-19. Therefore, there is no reason whatsoever to have denied the request for employment regulation for reasons of force majeure.

• Social Court 2 Burgos, judgment of May 19, 2020 , by which the demand is estimated because it is understood that force majeure occurs with respect to the suspensions of contracts and reductions of working hours applicable to the part of the activity not affected by the conditions of maintenance of the activity.

• Social Court 1 Ávila, judgment of May 27, 2020 , estimates the demand and declares the contested administrative resolution not in accordance with the law, since the existence of a total stoppage or suspension of the activity is not necessary, but the proven existence of "activity losses" as a consequence of COVID-19. Which, in addition, is consistent with the proposed measure, which is to reduce the working hours of the affected worker by 50%. Without prejudice to the fact that the other workers that make up the company's staff continue working and are not affected by the ERTE.

5.- REGARDING THE PREVENTION OF LABOR RISKS DERIVED FROM THE COVID-19 SPREAD

• Sole Social Court of Teruel, judgment of June 3, 2020 , in accordance with which, estimating the claim for a collective dispute, declares that the employing Public Administrations have violated the rights of workers (public employees) in the prevention of occupational hazards, putting their life, physical integrity and health and infringing their right to physical integrity and health protection, condemning them to reestablish the violated rights of workers and provide the individual protective equipment necessary for risks of exposure to the biological agent SARS Cov-2.

6.- JUDGMENTS DECLARING THE IMPROCEDANCE OF THE DISMISSAL

• Social Court 1 Soria, sentence of September 9, 2020 , unjustified termination of the contract of an IT worker, states that art. 2 of RD Law 9/2020 we cannot extract that it is a new cause of nullity and, the precept not constituting a prohibitive norm, it is only possible to apply the consolidated jurisprudence of the Supreme Court in matters of dismissal without cause, the decision must be qualified extinctive as inadmissible.

• Social Court 1 León, sentences of September 22, 2020 and October 1, 2020: rejects the nullity because it understands that RD Law 9/2020 does not prohibit the termination of the employment contract, but that force majeure or the ETOP causes used for the ERTES cannot be justified for the termination of the contracts. Being a dismissal without cause, the qualification of inadmissibility proceeds.

• Social Court 3 Ciudad Real, sentence of September 29, 2020 , states that art. 2 of RD Law 9/2020 does not contain a prohibition, limiting itself only to pointing out that the assumptions contemplated in it are not cause for the termination of the employment contract; affirms that the acausal dismissal must be classified as inadmissible.

• Social Court 1 Palencia, sentence of October 1, 2020 , understands that dismissal without cause must be classified as inadmissible.

• Social Court 4 Valladolid, judgment of October 14, 2020 , also qualifies as inadmissible the dismissal without cause.

• Social Court 2 Salamanca, sentence of October 21, 2020 , analyzes the assumption of a worker who is on leave for IT and is unjustifiably dismissed for organizational reasons in a company that has not resorted to the ERTE mechanism regulated in arts. 22 and 23 RD Law 8/2020, qualifying it as inadmissible, stating that art. 2 RD Law 9/2020, given that the company has not attended an ERTE of the aforementioned characteristics.

• Social Court 3 Gijón, sentence of November 3, 2020 , according to which "the temporary closure imposed for health reasons cannot be confused with the existence of force majeure in the dismissal", understanding that the accidental dismissal must be classified as inadmissible.

• Social Court 35 Barcelona, sentence of November 18, 2020 , understands that in an unjustified objective dismissal the qualification must be inadmissibility, since art. 2 RD Law 9/2020 does not introduce a prohibition. In this case, the judicial body expressly rejects a complementary dissuasive compensation (ex art. 10 ILO Convention 158 because it understands that the amount of art. 56 ET is already dissuasive.

• Social Court 11 Bilbao, sentence of November 19, 2020 , qualifies the causal dismissal as inadmissible, since the invoked norm does not expressly appreciate the nullity.

7.- JUDGMENTS DECLARING THE NULLITY OF THE DISMISSAL

• Social Court 3 Sabadell, judgment of July 6, 2020 , in which an assumption of fact prior to the promulgation of RD Law 9/2020 is analyzed, declaring the nullity of the individual objective dismissal practiced by the company because the judicial body considers that "actually, the termination of the plaintiff's contract occurred as a consequence of the situation derived from the declaration of the State of Alarm and the existence of circumstances that enabled the company to adopt the measures provided for in RD 8/2020, therefore, upon terminating the plaintiff's employment relationship, not only does it adduce a cause that does not justifies the termination, according to articles 22 and 23 of RDL 8/2020 and article 2 of RDL 9/2020, but implies a breach of the legal provisions adopted by the legislator in order to avoid the destruction of employment, a purpose that is reflected in Statement of Reason (III) of RD 8/20, in which it maintains that the measures of Chapter III of RD-Law 8/20 are aimed at avoiding layoffs and maintaining employment, and that purpose shall prevail. nar in the hermeneutics that regulates dismissal in the exceptional field of COVID-19, this purpose being the one that justifies the wording of art. 2 RD-Law 9/2020 ”. Likewise, it understands that the provisions of art. 6.3 of the Civil Code inasmuch as the termination of the plaintiff's employment contract constitutes an act contrary to the mandatory norm contained in RD Law 9/2020, in addition to constituting a fraud of law, ex art. 6.4. CC, inasmuch as the company relies on a non-existent cause to achieve a result prohibited by the legal system.

• 29 Barcelona Social Court, judgment of July 28, 2020 in which, analyzing an individual objective dismissal practiced on 05.04.2020, the nullity of the same is declared because “the regulations that arose during the state of alarm were intended to avoid the large number of terminations of labor relations or dismissals that are would be produced due to causes arising from the crisis that could have a different approach, so as to avoid a great impact on employment, for this reason it offered companies the possibility of suspending work contracts and carrying out reductions in working hours, both due to force majeure as well as economic, technical, organizational or production reasons, establishing an exception to the labor regulations that governed in a normal situation ”. Said judgment justifies the qualification of nullity because “the business decision was contrary to art. 2 of RD Law 9/2020 and therefore must be declared null and void, in accordance with the provisions of art. 6.3 of the Civil Code ("acts contrary to imperative and prohibitive norms are null and void, unless they establish a different effect in the case of contravention.") And as a consequence of this, the demand must be upheld and declare the termination of the employment relationship void, condemning the defendant company to reinstate the plaintiff under the same conditions, with payment of the wages not received until the reinstatement takes place… ”.

• Social Court 6 Oviedo, judgment of October 22, 2020 , understands that the unjustified termination of the employment contract causes, ex art. 2 RD Law 9/2020, the declaration of nullity, “since no other consequence may entail the violation of the established prohibition, since if the dismissal is considered inadmissible in that case, the employment relationship could be terminated unilaterally by business will by virtue of the right of option, with which the prohibition would remain in a mere declaration of intentions ”.

8.- JUDGMENTS RELATED TO THE TRANSIT FROM ERTE TO ERE IN THE FRAMEWORK OF COVID-19

• STSJ Andalucía, Seville Headquarters, October 29, 2020 (rec. 21/2020) declares the nullity of the collective dismissal, for breach of the consultation period, of a company that has an ERTE in force due to force majeure under the RD Law 8/2020, despite stating that said qualification cannot be derived solely of the absence of cause.

• STSJ Aragón, of October 27, 2020 (rec. 395/2020) declares null the collective dismissal of a company that, after an ERTE due to force majeure ex RD Law 8/2020 ended in July 2020, proceeds to an ERE in August 2020, being declared in bankruptcy in October 2020. The reasons for declaring the nullity of the collective dismissal are the absence of a consultation period, materialized by the business decision to transfer a work center. Given the bankruptcy situation, the nullity of the collective dismissal practiced is declared, with the impossibility of reinstatement due to business closure.

• STSJ Asturias, of October 26, 2020 (rec. 27/2020), declares the nullity of the collective dismissal terminated without agreement of a company that, having an ERTE in force due to force majeure ex art. 22 RD Law 8/2020, processes an ERE for economic reasons, declaring the nullity of the dismissal as a result of the documentary insufficiency provided to the workers during the consultation period. The judgment itself establishes that "Additional Provision 6 of the same rule limits dismissals in the cases of article 22, because that measure is subject" to the company's commitment to maintain employment for a period of six months from the date of resumption of the activity, understood as the reincorporation to effective work of people affected by the file, even when it is partial or only affects part of the workforce. This commitment will be understood to be breached if there is dismissal or termination of the contracts of any of the persons affected by said files. " It continues by arguing that, once the state of alarm has been lifted, the most authoritative doctrine regarding the suspension of contracts and their subsequent dismissal "will require that at least one of these two conditions be met, or the concurrence of a different and supervening cause of the one invoked and taken into account for the suspension, either in the case of the same cause, a substantial and relevant change with reference to the circumstances that led to the authorization of said suspension ”.

• STSJ Basque Country, of November 12, 2020 (rec. 9/2020) , declares the nullity of the dismissal because it understands the collective nature of the same since for the calculation of the number of affected, not only the termination of the employment contracts must be taken into account as a result of the failure to exceed the trial period (in the present case , a total of 25) but also the termination of temporary contracts (in a total of 6) and the disciplinary dismissals carried out (in a total of 34), so that the terminations practiced have exceeded the thresholds of collective dismissal in relation to the total number of workers.

9.- ERTE AND FJOS DISCONTINUES

• Social Court 6 Salamanca, judgment of June 30, 2020 , by virtue of which the business decision regarding not including in the collective application for unemployment benefits due to reduction and suspension of working hours as a result of Covid 19, permanent discontinuous workers included in the annex registered in ERTE is annulled. The right of the affected personnel to be included in the collective application for unemployment benefits is declared.

Coneix els diferents tipus d'ERTO derivats de la Covid-19

We tell you about the different types of ERTO that have arisen with the arrival of the pandemic.

Labor measures adopted within the framework of RDLey 30/2020, 29 September

La persistència de la crisi sanitària derivada de la Covid-19 ha provocat enorme densitat normativa, amb remissions creuades a normes que han estat modificades diverses vegades, fet que implica una gran dificultat a l'hora d'interpretar i, és clar, aplicar la norma jurídica.