WHAT IS FUNCTIONAL MOBILITY?

TYPES
Functional:
Geographical Mobility: The transfer of workers who have not been hired specifically
to provide services in companies with mobile work places or to travel to a different
workplace of the same company, which requires a change of residence, must be justified
for economic, technical, organizational or production reasons, or by contracts relating to
the business.

Geographical mobility consists of the transfer or displacement of the employee to a work

area that involves a change of residence to another locality to fulfill, thus, the professional
tasks.

It is also understood that there is geographical mobility when, over a period of three years,
there has been a displacement of more than 12 months.

It is worth noting that the change of work center in the same city is not considered
geographical mobility.

We talk about geographical mobility when it affects workers who in principle should not
move, but who are required by the company to do so for economic, technical,
organizational or production reasons.

There are two types of transfers in this mobility, individual and collective.

And depending on the duration, we find two types of mobility: the transfer or modification of
the work center, on a permanent basis or exceeding the duration of twelve months in a
period of three years. And the displacement or change of the work center that is temporary,
that is to say, that does not exceed the twelve months in a period of three years. In case of
exceeding it, it will be considered a transfer.

And given the company's decision to propose a transfer, what options does the worker
have? Well, you can accept it and thus you will be entitled to receive compensation for
expenses, both your own and those of your dependent relatives, in the terms that are
agreed individually or that are established in the collective agreement for the change of
residence.

The other option is to refuse it and end the employment relationship with the right to
unemployment or challenge the transfer. The request must be submitted within 20 working
days of notification.

With regard to travel, the worker is entitled to receive the corresponding salary, plus travel
and subsistence expenses. And if he does not agree, he will be able to appeal the measure
before the courts of the social jurisdiction.

In the Spanish legal system we must distinguish 4 types of geographic mobility in terms
of the causal and/or formal legal limits that the employer must observe for the decision
to be correct.
1. Temporary or indefinite geographical mobility that doesn’t involve a change of
residence. Imagine the case of a shopkeeper that the company decides to locate him/her
in a different store but in the same city. In this case, the Spanish rule (article 20 ET)
does not require the employer to justify its decision causally and it is not limited in time.
In this case, if the employee terminates his or her employment relationship, he or she
will not be entitled to any compensation or unemployment benefits.
2. Geographical mobility involving a change of residence that does not exceed 12
months in any period of 3 years. Imagine the case of an industrial engineer that has been
employed for several years in Barcelona for a telecommunications company and the
company wants to move him or her for 3 months to Seville. This case is qualified by
article 40.3 ET as «displacement» (desplazamiento) and requires the company to claim
economic, technical, organizational or production reasons to justify it. Continuing with
our example, the cause would exist if the work center of Seville has been recently
created and is required the presence of an experienced engineer during the startup
period. In cases of «displacement», the employer must inform the employee giving
notice of no less than 5 working days and must bear the relocation costs. Furthermore,
the worker has the right to a paid leave of 4 working days in his/her old residence when
the displacement is for more than 3 months. As with the first case of geographical
mobility analyzed and unlike the remaining two, if the employee terminates his or her
employment relationship, he or she will not be entitled to any compensation or
unemployment benefits.
3. Geographical mobility involving a change of residence permanent or for more than
12 months over a period of 3 years, and that does not affects a group of workers.
Imagine the same example of the industrial engineer that provides services in
Barcelona, but –in this case– the company wants to transfer him or her to Seville for 2
years. The geographical mobility that requires involving a change of residence
permanently or for more that 12 months in 3 years is called, in the Spanish legal system,
«transfer» (traslado) (article 40.1 ET). The Spanish rule requires the corporate decision
to be justified in terms of competitiveness, productivity or technical or work
organization. Following up with our example, imagine that the workplace in Seville has
been recently created and its special productive complexity requires the presence of an
industrial engineer with proven experience for two years. The worker must be informed
of the decision at least 30 days in advance, as well as the company’s workers’
representatives (Works Council or workers’ delegates). In addition, the employer must
bear the worker’s relocation costs and those of his or her family members. Unlike the
two previous cases analyzed, the worker affected by a «transfer» has the right to
terminate his or her employment contract with the right to compensation of 20 days'
salary per year of service with a maximum of 12 months, in addition to unemployment
benefits.
4. Geographical mobility involving a change of residence permanent or for more than
12 months in a period of 3 years and that affects a group of employees. Imagine the case
of a telecommunications company with a staff of 80 employees, which seeks to transfer
a group of 10 engineers for 2 years to its recently created work center in Seville. When
the employer’s transfer decision has collective nature,3 in addition to the existence of a
cause that justifies the measure in terms of competitiveness (for example, the workplace
Barcelona is closed and all of its previous workers are transferred to the work center in
Seville), the business decisions must be negotiated with workers’ representatives for at
least 15 days. The negotiation must be done in good faith (requiring proposals and
counterproposals) and must deal with the possibility of avoiding or reducing its effects,
as well as with necessary measures to mitigate its consequences for affected workers. In
the same sense as the third case of geographic mobility, workers affected by a
«collective transfer» have the right to extinguish their employment contract with the
right to compensation of 20 days' salary per year of service with a maximum of 12
months, in addition to unemployment benefits.

substantial modification of working conditions

Procedure for substantial modification of working conditions in Spain
In Spain, in the exercise of their duties, employers can agree a procedure for substantial
modification of working conditions. However, they will need to prove underlying
economical, technical, organizational or productivity reasons.
Any change to the following working conditions will be considered substantial or
significant:

 Workday
 Schedule and distribution of work hours
 Work shifts
 Salary
 Working system
Duties of the employee
It is required that the changes alter any fundamental aspect of the labor relationship.

When are changes considered collective?

The modifications will be considered collective when, within a period of 90 days, they
affect at least the limits established in the Spanish Law:

 10 workers in companies with less than 100 workers

 10% of workers in companies with 100-300 workers
 30 workers in companies with more than 300 workers.
Procedure for substantial modification of working conditions
The decision of collective substantial modification must be preceded by a series of
consultations with the representatives of the employees. According to article 41 of the
Estatuto de los Trabajadores (Workers Statutes), the company must adhere to the
following steps:

First, the directive of the company must properly communicate to the employees or their
legal representatives that they plan to initiate a process of substantial modification
After this notice, the deadline to constitute the negotiating commission opens, which
will be part of the consultation period. The commission will be composed of a
maximum of 13 members for each party (the company and the representatives of the
employees, respectively)
If there are no representatives of the workers in the company, they may opt to be
represented by:

(i) A commission composed by a maximum of 3 members democratically elected, who

should be employees of the company.
(ii) A commission with a maximum of 3 members composed by the most representative,
autonomous union and the most representative union in the activity sector of the
company.
The deadline by which to form the negotiating commission will be of 7 days, or 15 days
if the company does not have worker representatives.

3. After the constitution of the negotiating commission, the company will provide notice
that the consultation period has begun. During this period, the parties will discuss the
causes that led to the company’s decision and negotiate in good faith in order to reach
an agreement about the measures required to reduce the effects and consequences. This
period cannot exceed 15 days

4. The consultation period can be closed with or without an agreement. The decision
must be notified to both individual workers and their representatives. The decision shall
take effect 7 days following this notice

6. The decision may be contested in a collective conflict, without prejudice to the

individual actions established by the law.

Declaration of nullity of the procedure for substantial modification of working

conditions
It is mandatory that the employer follows the procedure established by law and provides
the reasons that justify the decision of substantial collective modification. Failure to
comply with any of the outlined requirements may cause the procedure to be voided.

In several recent decisions, the Supreme Court voided procedures for substantial
collective modification because the acting companies did not provided the information
required to the representatives of the employees during the consultation period. (STS
June 26th, 2018, rec.83/2017).

Additionally, the Supreme Court has called for the nullity of substantial collective
modification in cases where a company failed to notify the decision to the employee’s
representative after a period of consultation that closed without agreement, as this
interferes with the effective exercise of collective action established in the law (STS
March 22nd, 2018; rec.660/2016).

Conclusion
In Spain, the laws and courts demand scrupulous compliance with all the steps
established for the procedure for substantial modification of working conditions while
also calling for parties to act in good faith in order to reach an agreement.

There lies, in fact, a similarity in all those procedures that affect a collective of workers.
This, being true regardless of the subject and object in question, goes for collective
dismissal, substantial modification of working conditions or even geographical
mobility.

In all of them, the breach of any requirements or acting in bad faith during negotiation
will lead to the nullity of the procedure.