Collective layoffs linked to the company and not workplace
Until recently, the majority of legal experts took the view that, in cases of transfers of workplace under article 40 of the Workers’ Statute, the numerical thresholds of affected workers to be taken into account (for the purposes of determining whether the measure was a collective or individual procedure) had to be determined by workplace, while in collective layoffs and material modifications of working conditions, the thresholds had to be considered in respect of the entire workforce.
However, a recent judgment handed down in February by the Supreme Court held that the thresholds of affected workers must be calculated in respect of the company as a whole, thus reversing a Judgment of the Labor Chamber of the National Appellate Court. Accordingly, with respect to transfers, as in the case of collective layoffs, the total number of employees at the company must be taken into account in relation to the number of workers affected at the entire company.
Regardless of which approach best safeguards workers’ rights, the fact remains that the view taken by the Supreme Court will cause some confusion. For example, at companies with multiple workplaces and thousands of employees, if there is a transfer of just two employees per workplace over a period of ninety days, and a total of thirty workers are affected, it would be deemed a collective transfer. However, where the same company transfers 29 workers from a single workplace, which would have a significant impact, this would not constitute a collective transfer.
This is no trifling matter, since a collective transfer procedure requires a prior consultation period with the workers’ representatives, while individual dismissals only require notice to be served on each of the workers affected.
Garrigues Labor and Employment Department
