The purpose of the judicial protection procedure is to provide rapid and effective protection against infringements of the fundamental rights and public liberties enshrined in article 53.2 of the Spanish Constitution. Protection is afforded to all fundamental rights and public freedoms, including the prohibition against discrimination in the so-called enhanced protection area in Articles 14 to 29 of our Magna Carta. Unlike its predecessor, which made exclusive reference to freedom of association – the current Law on Social Jurisdiction now covers all fundamental rights and public liberties without distinction.

The main peculiarity of these special procedures is that, once the infringement of a fundamental right or public freedom has been minimally proven, even if only indirectly, it is the company that must prove that there is no such infringement and that the conduct of the company or the measures it has taken (such as warnings or dismissals) are not due to an infringement of such rights or public freedoms, but to other real, objective and sufficient reasons, unrelated to any interest or intention to infringe them.

Any worker or trade union that invokes a legitimate right or interest and considers that the rights to freedom of association, strike or other fundamental rights and public freedoms, including the prohibition of discriminatory treatment and harassment, have been infringed, can seek protection from judges and courts through this procedure based on the principles of preference and summary proceedings. Our law firm can assist you with the legal proceedings to seek such protection from judges and courts.

Some of the fundamental rights and public freedoms that judges and courts can protect through this procedure are the following:

– Right to equality and non-discrimination.

The principle of equality and non-discrimination implies the absence of any direct or indirect discrimination based on racial origin, religion or beliefs of the worker, disability, age, or sexual orientation.

Direct discrimination occurs when a person is treated less favourably than another person in a similar situation based on racial or ethnic origin, religion or belief, disability, age, or sexual orientation. Any treatment of people in different ways on the grounds of racial or ethnic origin, religion or belief, disability, age, or sexual orientation is in any case considered discrimination.

Indirect discrimination shall be taken to occur where a neutral provision, criterion or practice would put persons having a particular religion or belief, a specific disability, a specific age, or a specific sexual orientation at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, as defined by the European Court of Justice.

– Right to strike.

The right of workers to strike in defence of their interests is recognised in the Spanish constitution. The essential content of the right consists of stoppage of work, also including voluntary participation in actions to prepare or conduct the strike; to join a strike that has already been called, and to decide to return to work at any time during the strike; without which the exercise of the right is not conceivable. However, the right to strike is limited by other constitutionally protected rights. In particular, the freedom to work workers who do not wish to join the strike and the functioning of essential community services must be respected.

Concerning the right to strike, it has been argued that the pre-eminence of this right produces, during its exercise, the effect of reducing and to a certain extent anaesthetising, paralysing, or maintaining in a vegetative or latent life, other rights that in normal situations can and should deploy their full potential.

The employer’s freedom to recruit is contrary to respect for the right to strike, when it is used as an instrument to render the strike ineffective, by engaging personnel not objectively necessary for the proper operation of the company, but to reduce the pressure produced by the strike.

– Right to effective judicial protection and guarantee of indemnity.

The right to effective judicial protection as a guarantee of indemnity implies that, if the employee exercises their right to take legal action against the employer, no detrimental consequences may arise for the employee in the area of public or private relations. In other words, the aim is to protect the worker so that he can freely bring any action he deems appropriate without fear that the employer will retaliate.

Therefore, the guarantee of indemnity makes it impossible for the employer to take any reprisals against the employee due to the exercise of the protection of their rights. Workers’ acts deserving protection also include prior or preparatory actions, such as mediation. Within this procedure, once the worker has proven an independent situation of violation of the fundamental right to effective judicial protection, the company must prove that its action is due to real, objective, and sufficient reasons outside the breach of the fundamental right.

– Right to freedom of ideology, expression, and information.

The right to express ideas, opinions and thoughts, and the freedom of information, such as free communication and reception of facts that can be considered news. However, the exercise of these rights does not extend to disclosing sensitive employer data, such as data on the company’s productivity level in the media by workers’ representatives, which is contrary to the duty of secrecy.

– Right to privacy and one’s image.

The right to privacy and the worker’s image may be the object of guardianship concerning the employer’s power of supervision and control (as is the case with the use of recording, image, and sound systems; or with control over the use of email or the use of the internet). However, any restrictive measures must pass a proportionality test, including control over working tools that host private content or communications.

Thus, the right to personal privacy is considered to be infringed when the law inadequately covers the subject’s own and private area, or there is no effective consent or, it is not authorised, or when it disrupts the terms and scope for which consent was granted, thus breaking the connection between the personal information obtained and the tolerated objective.

With regard to control by image or recording, the consent of the worker is implied when the cameras are installed for occupational safety or control, provided that the company exercises its power within the legal limits and does not breach the worker’s fundamental rights.

As regards the employer’s control of the use of e-mail, The violation of the right to privacy must be assessed by the Courts, taking into account whether the company informed the worker that its posts could be controlled and the scope of such surveillance, in addition to the impact on their private life, as determined by the European Court of Human Rights in the case of Barbulescu v. Rumanía.

Consequently, when the inspection of e-mail is not indiscriminate but selective, limiting the content of those extracted, for example, to the mails relating to controversial bank transfers, and always from the company server not directly from the worker’s computer, there is no violation of the fundamental right, when the worker was informed that access to the company’s email was for strictly professional use.

This right of working persons is, in many situations, under the power of supervision and control of the employer. In addition, it is an issue that requires a detailed study of the circumstances of each case, so we strongly recommend the advice of a specialist in the field. Our legal and labour departments can advise and assist you with this type of judicial proceedings.

– Right to sexual freedom.

This right protects working persons in cases of sexual harassment at work, which can violate both the right not to be discriminated against based on sex and personal privacy.

Regarding conduct, sexual harassment is considered any physical or verbal behaviour performed based on a person’s sex, with the purpose or effect of attacking their dignity and creating an intimidating, degrading or offensive environment. Both these assumptions and treating right or expectation of a right conditional on acceptance are considered discriminatory.

The severity of the incident is an important component of the concept, which must be objectively weighted, considering the circumstances in each case.

– Right to the dignity of the worker in cases of harassment or bullying.

Harassment at work occurs when the harassed person does not intend to leave their job through resignation with compensation. In this case, the action to protect the fundamental right can be joined to ordinary contractual termination, with the procedural guarantees that this entails.

It affects the professional dignity of the person and is sometimes closely related to the violation of the fundamental right to physical and moral integrity.

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