Logo Piero Viganego

 

Dismissal

Outsourcing of services. Valid causes for dismissal

The Spanish Supreme Court has confirmed that collective redundancies can be justified for reasons of overstaffing resulting from the outsourcing of services.

In the case before the Court, the Company had suffered heavy losses for several years due to a drop in demand and decided to outsource part of the activity in order to reduce costs. Housekeeping and maintenance services were outsourced to obtain savings that compensated for the losses and the drop in sales and the subsequent effective occupation of the workers.

The collective redundancy was justified for economic and organisational reasons.

Court of Appeal judgement highlights the importance of having good internal policy on electronic media and Internet access.

The Supreme Court of Murcia, in its sentence of 29 March 2017, deemed the dismissal of an employee for forwarding emails from the company's address to his private account to be fair.

A key factor in this decision was that the company had a clear internal regulation “with specific content” on the use of electronic media and had made an effort to ensure it was known by employees.

“There is no doubt that [the worker] clearly breached trust and loyalty by forwarding emails sent to the company" and “violated the prohibition on the fraudulent use of the company’s media” the court found.

Such emails belong to the company and forwarding them to a private account against the company's express instructions constitutes “misconduct with regards the company’s orders”.

The wording of the sentence seems to suggest that had the company not had a written policy with specific regulations on the use of information, the dismissal would have been deemed unfair unless it could logically be proven that the employee was using the information for dishonest purposes.

This judgement is in line with the recent judgement of the European Court of Human Rights (Case Bogdan Barbulescu). It is therefore important for companies that wish to safeguard the custody of emails that reach their employees to have clear policies regarding the exchange of information by electronic means and Internet access.

Use of video surveillance cameras legal proof for dismissal

The Supreme Court sentence of 31/01/2017 has endorsed the use of CCTV tapes to justify dismissals, understanding that they do not violate data protection laws if the worker is aware of the camera's presence and location. Nor do they need to obtain the worker's express consent if the cameras are installed to supervise compliance with the labour relationship, although it will be required if installed for other purposes. This new case-law doctrine does not alter restrictions on the installation of cameras, which may be used whenever it is a justified, suitable and necessary measure in keeping with the aim pursued, and on condition of compliance with the legal requirements on personal data processing.