A recent labour dispute has brought to the table the limits of the power of company management to change the workplace of its employees without this constituting, formally, a transfer. In this case, a company notified several female customer service employees of their transfer to a new center located 60 kilometers away from the previous one. Although part of the department was already operating from the new center, other departments remained at the original location.
The employees challenged the move in court, arguing that the change represented a substantial modification of their working conditions (MSCT), even though it did not involve a change of residence. The new commute involved between 40 minutes and one hour by car, or up to one and a half hours by public transport each way, which significantly affected their daily workday and the possibility of conciling personal and work life.
The Social Court upheld the claim. It considered that the company had incurred in an unjustified substantial modification of working conditions, ordering the reinstatement of the employees to the previous center. It also ordered the company to pay compensation for travel expenses and a wage compensation equivalent to three hours per day per day actually worked.
The judge reasoned that, although it was not a transfer in the strict sense, the effects of the measure were so burdensome that they exceeded the legitimate exercise of ius variandi (the employer’s power to make reasonable changes in working conditions).
Faced with this decision, the company filed an appeal for reversal before the Superior Court of Justice (TSJ), which rejected it. Subsequently, the company appealed to the Supreme Court for the unification of doctrine, arguing that the change of center should not be considered MSCT as it did not imply a change of residence.
However, the Supreme Court rejected the appeal, considering that there was no contradiction between the contested judgment and the one provided as a basis for comparison. In the latter, the change of center had been justified for reasons of occupational risk prevention, and the daily commuting time was much less. In contrast, in the present case, the use of public transport could involve up to four hours of travel time per day, which seriously affected the conciliation of personal and family life.
The Court reiterated that, although the formal transfer requires a change of residence, an alteration that significantly affects the working day, rest times or conciliation can be considered a substantial modification if it is not duly justified. Furthermore, it recalled that the employer cannot unilaterally modify essential aspects of the employment contract without objective organizational or productive reasons.
In short, this decision sets a relevant precedent, underlining that the power of corporate management has clear limits when the decisions adopted substantially affect the lives of employees. The balance between organizational flexibility and labour rights is once again at the center of the current legal debate.
Águeda Ponce