Understanding Employee Mobility and Contract Changes
What is Functional Mobility?
Functional mobility refers to an employee’s ability to move freely between different jobs within the same company. These changes are made to perform functions that fall within the same or an equivalent professional level. It is also possible to change positions to perform functions of different categories, but this must be supported by technical or organizational reasons, and its duration must be strictly necessary. If an employee performs functions of a lower category, they are entitled to receive the same salary they had been receiving. If functions are performed at a higher level, they are entitled to receive the salary for the higher category and can ask for a promotion if the new functions are performed for a period exceeding six months in a year or eight months over two years, unless the collective agreement has established a different system for filling vacancies.
What is Geographical Mobility?
Geographical mobility refers to the employer’s ability to transfer an employee to a different workplace that requires a change in residence, where there are economic, technical, organizational, or production reasons that warrant it. The decision to transfer should be communicated to the worker with a notice of 30 days, and the employee can choose between:
- Moving, with entitlement to receive compensation for relocation expenses.
- Not moving and terminating their employment, with entitlement to receive compensation of twenty days’ pay for each year of seniority in the company, up to a maximum of 12 months.
If the worker believes that the reasons given by the company do not justify the move, they can file a claim before the Social Court. The court will determine whether the transfer is justified or not. In the latter case, the employee will return to their original job. The company can also carry out the collective transfer of all or part of the workplace, following a consultation period with the workers’ legal representatives (works council or staff representatives). It is understood that a transfer is collective if, within 90 days, it affects at least a certain number of workers in an enterprise.
When is There a Substantial Change in Employment?
The management of the company, upon proving economic, technical, organizational, or production reasons, can change, individually or collectively, substantial working conditions, such as:
- The workday
- The schedule
- The shift work system
- The pay system
- The system of work and performance
- The functions, when exceeding the limits of functional mobility
The decision to change working conditions must be notified to those concerned with a notice of 30 days. In some cases, such as changing the workday, time, and shift, the employee may terminate their employment at the company and is entitled to receive compensation of 20 days’ wages for each year of service, with a maximum of nine months’ pay.
Collective Changes
Collective changes are:
- Those that, within 90 days, affect a number of workers identified as geographical mobility.
- Those that affect conditions established by agreement or collective agreement.
Collective changes must be preceded by a consultation period with the legal representatives of the workers. The employee, as in the case of geographical mobility, can file a claim before the Social Court if they consider that the reasons given by the company do not justify the change.
Suspension of the Employment Contract
The suspension of an employment contract is a temporary interruption of employment. During this period, the employee does not work and does not earn wages. At the end of the cause for suspension, the worker is entitled to resume their work.
Causes of Contract Suspension
- Mutual agreement of the parties and the grounds specified in the contract: The worker and employer may agree on the causes that may lead to a suspension of the contract and its duration. For example, the employee and employer may agree that the relationship is suspended while the worker pursues higher education. However, a pact by which the contract is suspended during the holiday month when the company is closed would not be valid because holidays are a time of required and rewarded rest.
- Temporary incapacity: Temporary disability or sick leave is the situation where the worker is temporarily unable to work due to illness or accident. This has a maximum duration of 12 months, renewable for another six months when it is deemed that the employee may recover from their illness or injuries.
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Maternity leave and risk during pregnancy: Maternity leave or adoption of a child under six years has a duration of 16 weeks, extendable in case of multiple births or adoptions to two weeks for each child. In the case of biological maternity, the employee may distribute this period before or after delivery, always reserving six weeks for after the delivery. If both the mother and father work, the father may enjoy the rest simultaneously or successively with the mother, in addition to the six weeks after childbirth to be enjoyed exclusively by the mother. With prior agreement with the employer, the period of suspension of the contract can also be enjoyed part-time.
Risk during pregnancy is the situation where the worker cannot continue in their job because it is incompatible with the pregnancy. - Imprisonment of the worker, while there is no conviction: Later, if the worker is sentenced to a term of imprisonment, the contract could be terminated.
- Suspension without pay for disciplinary reasons: The employer may approve the temporary suspension without pay for workers who have committed serious misconduct.
- Force majeure: Temporary economic, technical, organizational, or production reasons that impede the provision of work. The employment contract can be suspended for several or all employees of the company due to an unforeseeable or unavoidable external event, which is called force majeure, and that prevents the temporary provision of labor, such as a fire at the company. There can also be labor disruptions affecting many or all employees of a company for economic, technical, organizational, or production reasons. In both cases, prior approval by the labor authorities is required to implement the suspension of contracts.
- The right to strike and the legal closing of the company: Both the strike and the company’s legal closure (discussed in Unit 4) are situations in which workers and employers may express their differences.
Types of Leave
- Compulsory: Granted when a worker is designated for public office (mayor, deputy, etc.) that makes it impossible to work. Once completed, the worker is entitled to resume their job.
- Voluntary: Employees may stop their relationship, provided they have a length of service of at least one year, and are seeking leave for a minimum of two and a maximum of five years. This leave does not entitle them to return to the job, but they have a prior right to fill any vacancies.
- Care of children: Workers have the right to enjoy a period of leave not exceeding three years for the care of each child, starting from birth. During the first year of leave, they are entitled to the reservation of their own job. After that deadline, they will have a reserved job with the same or a similar category.
- Care of a family member: Employees are also entitled to leave for a period not exceeding one year and retain their position, for the care of a relative up to the second degree, who cannot fend for themselves for reasons of age, illness, or accident.