Our Courts are assessing cases of work stress and work overload as serious breaches by the employer, which may give rise to the employee being able to request the termination of the employment relationship with compensation equivalent to that of an unfair dismissal.
The termination of the employment relationship at the employee’s will is regulated in Article 50 of the Workers’ Statute (hereinafter TRLET), and among the different ways that our legislation provides for (repeated non-payment of wages, etc.), the open clause in section c) stands out, which indicates as a just cause for termination “Any other serious breach of obligations by the employer“.
For the purposes of interpreting this provision, we must remember that it is the Judges and Magistrates of the social order who are responsible for interpreting and adapting to our times, what should be understood by serious breach by the employer. On this basis, we will now review the latest developments published on the assessment of work-related stress and work overload as a breach by the employer in current rulings.
The first of these is the ruling dated 16 June 2020 of the Social Division of the Madrid High Court of Justice, which declared, in favour of an employee of an old people’s home, that the employment relationship between the parties was terminated with compensation, with effect from the date of termination, for “very serious breach of the employer’s obligations in terms of occupational risk prevention“. The reason for the ruling was that the geroculturist was subjected for months to a workload more than double that which corresponded to him in accordance with the ratios established in the regulations of the Community of Madrid. In addition, the Court considered that the worker’s successive anxiety crises, which led to several periods of temporary incapacity during the employment relationship, proved the injury to the physical and moral integrity of the worker, whose health was effectively damaged.
In contrast, we find the Judgment of 12 November 2020 of the Social Division of the High Court of Justice of Catalonia which rejected the request for termination of the employment relationship of an administrative employee with “mixed anxiety and depressive disorder derived from the labour conflict she has with the company, and which the judge interpreted as being due to an overload of work“. As the Court did not find a breach of the company’s preventive obligations in terms of psychosocial risks, given that (i) the company hired a new administrative assistant to share the tasks with the worker, (ii) at no time prior to the filing of the lawsuit did the worker inform the company of the work overload situation, and (iii) because the cause of the last TI process derived from the disagreement that the worker herself had with the company at the task-sharing meeting.
The SCJ of Catalonia concluded that, although stress may have a connection with the work, this cannot be the cause of something as exceptional as a declaration of termination of the contract; adding that long working hours and overtime, even if they are not voluntary, cannot in themselves be classified as non-compliance and that, even if they were, this would not reach the seriousness required by art. 50.1.c) of the TRLET to terminate an employment contract.
In view of both rulings, we can affirm that in order to declare the termination of the employment relationship with compensation (art. 50.1 TRLET), the existence of a breach by the company of its preventive obligations in terms of psychosocial risks must be established. The main psychosocial risks should be understood as work-related stress and violence at work, both internal to the centre or workplace and that exercised by third parties. In this way, and as we wish to highlight, even if the existence of harassment at work is not appreciated, the existence of degrading or harmful treatment to the physical and moral integrity of the worker may be appreciated due to the defective, abusive or arbitrary exercise of the employer’s powers that give rise to the compensated termination of the employment relationship.
As a differentiating element, we find that in the first judgment of the Madrid SCJ, the work overload could be objectively established, by virtue of the regulations of the Community of Madrid, in accordance with the ratios for the calculation of the number of workers necessary for the proper care in retirement homes; while in the judgment of the Catalonia SCJ, the court itself mentions that there is no evidence of the number of overtime hours, nor when they were worked, not being able in this case to assess their impact on the employer’s non-compliance.
This fact is not trivial, since the objectification of the work overload allows the magnitude of the employer’s non-compliance and the risks it entails for the physical and moral integrity of the worker to be assessed, as well as for the declaration of the compensated termination of the employment contract.
It will therefore be absolutely necessary to carry out evidence aimed at objectifying the specific causes and circumstances in which the worker has been providing his services, in order to be able to accredit the seriousness of the company’s non-compliance and its effect on the worker and, therefore, the compensated termination of the employment relationship.