A judgment from the Supreme Court reopens the debate on dismissals of employees who refuse to change their full-time contract to part-time when there is a reduction in the company’s workload.
A full-time contract is linked to the performance of the tasks specific to the category engaged, within the working hours set by the collective labor agreement. And it can be full-time or part-time depending on whether the contract is for all of the working hours permitted under the collective agreement, or for a lower percentage. But it may be that the workload is not fixed or stable, but rather fluctuates due to market circumstances. In this context, which is not uncommon, it is necessary to reduce the hours engaged, in order to adapt the contract to the new situation. But what can an employer do when a worker does not agree to the conversion?
It is true that the employer cannot unilaterally change a full-time contract to a part-time one, even if its business is actually being reduced. Indeed, the labor legislation establishes a protection that prohibits employers from retaliating against workers who oppose such a measure. This has been the case since November 13, 1998 when an agreement was reached with the most representative labor unions on the new regime applicable to part-time contracts. This agreement established, for the first time, the right of workers not to be dismissed for refusing to convert a full-time contract into a part-time contract.
But when this protection was taken up by the parliament, with the wording of Royal Decree-law 15/1998, of November 27, 1998 , it experienced some changes. One of them was that, although the worker could not be dismissed or suffer any other kind of penalty or harmful effect as a result of rejecting a reduction in working hours via conversion to part-time, the employer could adopt the termination measures envisaged in articles 51 and 52 of the Workers’ Statute, on economic, technical, organizational or production-related grounds.
The legislation was subsequently approved and, since then, article 12.4.e) of the Workers’ Statute contains two clearly contradictory concepts: on the one hand, the worker’s strong protection that allows him or her to reject conversion while remaining harmless from any negative consequences; and, on the other, in the next line, the mechanism whereby the employer can dismiss a worker who refuses to accept the conversion. The coexistence of the two concepts is commendable, but it has led to all manner of disputes that have resulted in inconsistent decisions that sometimes rule in favor of workers and other times in favor of employers.
A judgment handed own by the Supreme Court on May 30, 2018 has reopened this debate, after declaring as valid the dismissal of a worker who did not agree to transition to part-time when the employer asked him to do so.
The circumstances in which the dispute occurred are relevant because they often arise when the workload of a given service is reduced. In this specific case, it involved an employee who provided query resolution services at a professional association. Due to the crisis, the volume of queries resolved by the worker fell by up to 70%. The company then offered the worker to convert his contract into a part-time contract given that only 30% of his working hours were required to handle the existing workload.
After analyzing the new employment offer, which entailed a clear and proportional reduction in salary and social security contributions, the worker refused and decided to continue to be a full-time employee. The company wasted no time in reacting by terminating his employment contract and immediately hiring a new employee on a part-time basis. In examining the case, the Supreme Court understood that the termination solution existing in article 12.4.e) of the Workers’ Statute, whereby the employer can adopt labor restructuring measures based on objective grounds, is perfectly valid. Indeed, the Court conveyed that whoever resorts to this termination solution in this context is acting lawfully and that workers are not protected by their rejection of the conversion. On the contrary, they are subject to a decision that terminates their contract on objective grounds.
Therefore, provided that there are evidenced objective grounds, when workers refuse to accept the conversion of their full-time employment contracts into part-time contracts and do not give their consent to the change in contract, the employer may terminate their contract. Moreover, the Supreme Court also acknowledged the employer’s right to fill the vacant position immediately by hiring a new worker on a part-time basis.
Accordingly, the rejection of the change does not freeze the employer’s workforce in place but rather, provided that there are evidenced objective grounds, employees who do not accept the conversion can be dismissed and replaced by another worker who will.
Garrigues Labor and Employment Law Department
