Spain: Supreme Court permits Change of Workplace without any Effect on the Employee’s Residence

A change of workplace to another location without requiring a change of residence of the employee is within the ius variandi of the company. The court determined that in order for the transfer to be a substantial modification and give rise to the possible voluntary termination of the contract by the employee, it inevitably requires a mandatory change of address. Therefore, under this perspective, it is considered an incidental modification.

The defendant company filed an appeal to the Supreme Court, for the unification of doctrine against the decision made by the Court of Justice of Andalucía.  In this case, the claimant had been providing services for the company at “La Cañada Shopping Center” in Marbella.

On 22 May 2017, the company notified the employee that due to the prevention of occupational risks, he would start working as an office manager at the Plaza Mayor Shop in Malaga as of 1 June; it should be noted that between these two locations there is a distance of 56 km.

In its reasoning, the Supreme Court starts by clarifying that the applicable collective agreement only establishes financial obligations regarding transportation costs in cases of transfers over a distance within 5 km.

In the court’s view, a change of workplace without any effect on the employee’s residence constitutes an incidental change in working conditions, which falls within the employer’s organisational discretion. Therefore, the Supreme Court found that such changes are covered by the ordinary management authority of the employer, as regulated in articles 5.1 c) and 20 of the Worker’s Statue. The Court also indicated that the company was not obligated to follow any procedure or justification to which article 41.7 ET refers. In the words of the Supreme Court:

“The legal rule does not impose any requirement of a cause-and-effect justification on the manifestations of management power, nor does it grant the employee affected the right to terminate the employment which it does in the case of substantial changes.” 

Bear in mind that in the present case, there has been no change in the employee’s category or duties, and his level of remuneration has been preserved to the letter, even in the amount relating to (the employee’s) domiciliation.

The Supreme Court upheld the appeal and ruled in favour of the company. The Court determined that it was neither a geographical mobility, nor a substantial modification of the conditions of the contract, in the terms provided for in art. 40 or in art. 41 of the Worker’s Statute.

Key Action Points for Human Resources and In-house Counsel 

The transfer of an employee to another workplace location is an incidental modification to the agreement, if it does not require the employee to relocate his residence.