Employers’ narrow margin for reaction during a strike
The manner in which Spanish labor and employment law legislation treats and interprets strikes comes with such a large dose of protection and caution that it usually clashes with the steps that an employer may try to take to offset its impact.
A recent judgment by the Supreme Court on March 18, 2016, has again restricted employers’ possibilities during a strike, by extending strike-breaking to activities that at times may not even fall within the employer’s scope of organization and control.
In the case in question, and after a series of vicissitudes related to the submission by the employer (a bank) of a collective employment contract suspension procedure which ended with a call for a strike by the labor unions, it was debated whether the actions of the bank entailed a replacement of the strikers.
The conduct attributed to the bank consisted of :
(i) replacing the striking workers from several workplaces with workers from other workplaces that were not on strike,
(ii) replacing the strikers with employees from the same workplace but with different professional categories,
(iii) sending a “traveling” worker to an office where she usually “reinforced” the services but at which, that day, the teller had backed the strike and
(iv) a situation in which, at several workplaces, the manager and deputy manager of the office, who was the only one providing services together with two interns or a salesperson, took over the tasks specific to tellers.
Before the merits of the case were examined, the bank asserted two formal lines of defense, seeking the dismissal of the claim without any ruling on the matter.
First of all, the bank contended that, due to the low participation in the strike, it could not be considered that there had been a “unified policy of the company toward the call for the strike”, something which had been found by the National Appellate Court, which required the Chamber to declare itself without jurisdiction. The Supreme Court dismissed this claim on the basis (i) that the replacements took place in the same call for the strike and on the same days, in several autonomous communities, and (ii) of the bank’s assumption that the replacements entailed an executive power available from a mobility standpoint.
The bank’s line of reasoning on statutes of limitations also failed, since the Supreme Court considered that, although the legal action had been brought more than a year after the strikes, the complaints filed by the labor unions with the labor inspectors had the effect of tolling the statute of limitations.
Upon examining the merits of the case, the Supreme Court referred to its prior case law that allows an employer resort to the means habitually used to mitigate the consequences of the strike but “without the strikers being replaced by other workers, neither people from outside the company, nor from its own staff”.
On this point, the Supreme Court emphasized the legal prohibition on internal strike-breaking (replacement by non-striking workers of the company) and on technological strike-breaking. In this respect, the Supreme Court noted that the exercise of the ius variandi is a power granted to the employer “in normal circumstances but not in the situation in dispute”.
Lastly, the Supreme Court validated the indemnification granted to the labor unions, in the amount of €5,000 each. It should be noted that the plaintiffs sought, in the lower court, the amount of €25,000 for each labor union plus an amount equal to the wages deducted during the strikes for each striking worker.
Garrigues Labor and Employment Department