What happens if a worker refuses to be removed from an ERTE?

Workers who do not want to return from ERTE: what to do?

The refusal of an employee on ERTE to return to work at the employer's request implies indiscipline and may lead to dismissal. This applies even when the return to work is requested before the end of the ERTE period. There have already been previous cases in which the worker has been sanctioned, for example, the ruling of the High Court of Justice (TSJ) of Madrid (Judgment 286/2019 of 25 Apr. 2019) which stipulated that not returning to work is a very serious misconduct and cause for dismissal.

The first step that a company must take to reinstate a worker from an ERTE is to inform the worker of the decision to terminate the ERTE and that he/she must return to work. In addition to notifying the employee that he/she wishes to return to work, a communication must also be sent to the State Public Employment Service (SEPE) to stop paying public benefits to the employee. The worker is obliged to return to work according to the company's request, in case of failure to do so, the company could proceed to dismiss the worker as the worker has incurred in a very serious misconduct.

In the law firm G. Elías y Muñoz ABOGADOS we have specialised lawyers to guide and attend to this type of legal process.

The claw-back clause and its effects

The company must take into account some important details when claiming the return of its workers and they refuse to rejoin the company. Both parties must be clear that two conditions can occur: in the first case the ERTE has been declared as a temporary measure and the company keeps the right to recall the worker when it is economically able to do so; in the second case the ERTE is defined for a specific period of time and the company must have a recovery clause that allows the worker to be requested to return before the previously established period of time has expired. Such a claw-back clause allows the company to dismiss a worker who refuses to be released from ERTE.

Workers on ERTE in a company should be aware of the clawback clause and what it consists of. Normally the clause is applicable when the needs and conditions of the company require the worker. The fact of having a recovery clause was decisive in the ruling in favour of the company in the Madrid Supreme Court case cited above. It should be borne in mind that Royal Decree-Law 18/2020 gives a boost to disaffectation and allows the progressive reincorporation of workers on ERTE to work.

Collective dismissal, suspension of contracts and reduction of working hours.

Royal Decree 1483/2012 of 29 October regulates the procedure for dismissal, suspension of contracts and reduction of working hours. In the event that the refusal of a worker in ERTE is justified, dismissal is not possible. In order to find a work-life balance and to reduce the company's losses, a reduction of the working day may be applied by mutual agreement with the employee. Among the procedures, the Royal Decree must be followed in order to ensure the rights of workers and that the reduction of working hours is carried out correctly.

In those specific cases where it is justified that the worker cannot return from the ERTE, for example, because he/she has dependents, the company must be notified by the worker 24 hours before the day he/she is due to return. Royal Decree 1483/2012 of 29 October establishes the suspension of employment for economic, organisational and technical reasons as referred to in article 47 of the Workers' Statute Law, and in the same way, the above Royal Decree specifies the procedure for modifying the duration of the ERTE if the causes that gave rise to it are corrected.

Is teleworking an option for refusing to return to work?

Teleworking has been one of the popular options for many companies to continue working or to have part-time work from home. Regardless of the positive results teleworking may or may not have and whether or not it is an employment variant, it is not a right that can be demanded by the employee. Teleworking is arrived at by mutual agreement between the worker and the employer. Although Article 5 of Royal Decree-Law 8/2020 gives preference to telework over suspension or reduction of working hours, the employer is not obliged to make use of this option.

It is important that both the employer and the worker understand that a worker who refuses to be removed from ERTE cannot justify his refusal with telework. Neither is the measure not to be applied to those who have been teleworking during the ERTE and argue that it has been done well so far. In the event of a situation that justifies the worker not joining the company, an agreement could be reached with the company to partially or totally stabilise their working day as telework.

Serious and imminent danger as the only exception

Although according to everything explained above, the worker is obliged to return to work if requested to do so by his employer, there is an exception that would legally allow him not to return to work in person. Article 21.2 and 4 of the Law on the Prevention of Occupational Risks provides that, in the event of an eminent risk to the health or life of the person, he or she may refuse to return to or continue at the workplace. In order for this article to apply and for workers to refuse to return to work, it must be probable that there is a serious and real danger, for example, a positive case of Covid-19 in the office or work area.

In the event that the worker decides not to join the company in accordance with article 21.2 and 4 of the Law on Prevention of Occupational Risks, he/she must in any case inform the company so that the company does not suffer any damage or harm as a result of his/her absence. In the event that the worker does not give notice or does not follow the appropriate procedure, the Madrid law firm, G. Elías y Muñoz ABOGADOS could advise the company on the process and the steps to be taken to minimise the company's damages.