The Supreme Court rules that companies could not eliminate the restaurant tickets during the state of alarm

Companies can not remove the restaurant ticket to their workers even if there is a state of alarm and many of them are teleworking for reasons of force majeure. The Supreme Court has just issued a final ruling on this issue firmly annulling the measure of the technology consulting firm Capgemini to withdraw the restaurant ticket to thousands of workers during the first month and a half of pandemic. The judges of the Social Court confirm what the Audiencia Nacional said in the first instance and remember that these restaurant tickets were part of their salary structure and this condition cannot be modified unilaterally by the company.

The Supreme Court establishes that the restaurant tickets are not part of the salary even if they are included in the payroll.

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The judgment of the Supreme Court, to which has had access, studies the case of the technological consultancy Capgemini that eliminated the restaurant tickets of its workers from March 14 when the state of alarm started until the last day of April 2020. The company explained that this measure, which affected 5,000 workers, was put in place “given the current situation of confinement” and excluding those who continued to work in person at the offices of the company or its customers.

Several trade unions took the measure to court as they understood that it was a substantial modification of working conditions imposed unilaterally by the company, also bypassing the procedure established in the Statute of Workers. In this case, the Supreme Court recalls that, in this case, the agreements signed between company and workers integrated and consolidated the restaurant ticket “in the salary structure of the workers”.

Now the social chamber of the Supreme Court, with the magistrate Concepción Ureste as rapporteur, has established that in this type of case the company could not withdraw the restaurant tickets even if the workers had gone home to continue with their work. The judges begin by explaining that this modification did not last long, barely a month and a half, but that it did have “a high quantitative impact” on 5,000 workers. It also affected an economic concept that “had become an integral and consolidated part of its remuneration structure”.

The pocket of workers, says the Supreme, noticed it at the rate of 5.40 euros for each working day actually worked, something with “economic relevance”. This was done by Capgemini without the company has also explained, in its appeal, if there were “compensation for the measure in question” to alleviate the money that stopped collecting their workers, that after all continued to eat every day.

This means that the company skipped the provisions of Article 41 of the Statute of Workers causing, says the Supreme, “inexorably the nullity of the measure of suppression of meal tickets while the state of alarm lasted, for involving a substantial modification of working conditions, in terms of remuneration” as also said the National Court to resolve the appeal of the unions. This would be the same, says the Supreme Court, if we were talking about an extra-salary concept.

The magistrates of the plenary of the social chamber of the Supreme Court insist, in the final part of the sentence to which this newspaper has had access, that in this particular case company and workers had signed agreements that had become the restaurant tickets in part of the “salary structure of workers”. A money that they charged even in cases of continuous workday without ruling out or excluding the days teleworked “through the use of new technologies”. Another thing is that the agreements were disaggregated and more fine-grained on this type of teleworking days.

Wage or compensation

In recent years, the Supreme Court has handed down numerous rulings on the restaurant vouchers that companies give their employees for daily meal expenses and on their legal nature. In the Capgemini case the judges have concluded that it is a salary concept as it was paid independently of whether or not the workers had a meal expense. In other cases, where it is shown to be in response to a specific expense, it is treated as compensation.

A recent Supreme Court ruling, for example, establishes that a restaurant ticket does not have to be part of the salary even if it is charged month by month in the payroll if the company and the workers have decided that it is a supplement. This decision of the Supreme Court, for example, left out the amount of the ticket restaurant of the calculations of salary revisions, extra payments, variables, bonuses, complements or temporary incapacity during a sick leave.

In both cases, the Supreme Court now says in this latest ruling, “the conclusion reached would remain immutable”. Any change, even if the restaurant tickets were compensatory in nature, must go through what the Workers’ Statute says. The Supreme Court explains: “Substantial changes introduced with respect to their scope would also have to be processed in accordance with the aforementioned precept, in such a way that, once its application is pretermitted, the consequence that would be attached would also be that the claim agreed in the instance would be upheld”.

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