Sentencia pionera: cobrará el desempleo cuando la legislación no lo permitía
La Sala de lo Social del Tribunal Superior de Xustiza de Galicia (TSXG) ha emitido una sentencia pionera en España en la que ha declarado el derecho de una empleada del hogar a percibir las prestaciones de desempleo contributivo antes de la entrada en vigor del Real Decreto Ley 16/2022 para la mejora de las condiciones de trabajo y de Seguridad Social de las personas trabajadoras al servicio del hogar.
El alto tribunal gallego ha entendido que la demandante tiene derecho a las prestaciones, pese a que la legislación vigente en el momento de la solicitud no lo permitía, por aplicación de la perspectiva de género y de la sentencia del Tribunal de Justicia de la Unión Europea que provocó el cambio normativo en España.
Los magistrados han explicado en la resolución que la normativa española que excluía a las personas empleadas del hogar del acceso al subsidio de desempleo, vigente en el momento de los hechos, era “contraria a la normativa comunitaria”.En la resolución, acuerda que la actora, afiliada al Sistema Especial para Empleados del Hogar hasta el 4 de agosto de 2022, había cotizado 2.361 días en este régimen y dos días al Régimen General de la Seguridad Social.
Al solicitar su subsidio de desempleo, le fue denegado porque no estaba previsto para las personas empleadas del hogar, pues el Real Decreto Ley entró en vigor el 9 de septiembre de 2022.La Sala de lo Social incide en que el colectivo al que pertenece la demandante está “fuertemente feminizado, pues las mujeres representan el 95,53 % del total”.
El TSXG destaca que el nuevo régimen resuelve esa discriminación para las prestaciones producidas a partir de su entrada en vigor, “dejando en la misma e idéntica situación anterior a las eventuales prestaciones causadas con anterioridad”.Además, recalca que la perspectiva de género en la interpretación de la normativa y la obligación dimanada de la jurisprudencia del TJUE “obligan a amparar a las personas trabajadoras integradas en ese sistema especial cuando la pérdida de su empleo se haya producido con anterioridad al nuevo régimen y estén desprotegidas”.
Todo ello, según la sentencia, lleva a los jueces del TSXG a reconocer el derecho de la afectada a la prestación de desempleo, “pese a que no ha cotizado por ella debido a la imposibilidad legal, discriminatoria” que regía en el ese momento.“Es preciso tener en cuenta, de una parte, que la normativa española que excluía la cotización (y el desempleo) para las personas trabajadoras integradas en el Sistema Especial para Empleados del Hogar es contraria al derecho comunitario por discriminatorio, y que dicha situación no se ha solucionado con la reforma operada por el Real Decreto Ley 16/22 porque no resuelve el problema de los posibles beneficiarios anteriores, sino solamente de los hechos causantes posteriores a su entrada en vigor”.
La sentencia.Igualmente indica que “la interpretación de la normativa debe producirse en la forma más favorable al colectivo discriminado (el de las personas integradas en ese sistema especial), con perspectiva de género, porque es indiscutible el sesgo femenino de sus integrantes en su casi totalidad; y, además, en la aplicación e interpretación de las normas los juzgadores tenemos una obligación de hacerlo con perspectiva de género, al integrar un valor superior del ordenamiento jurídico”. La sentencia no es firme, pues contra ella cabe interponer recurso de casación.
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The consequences of faking an accident to 'cheat' the insurer
The first section of the Court of Ciudad Real has sentenced to one year in prison and a fine of seven months at a rate of twelve euros per day to a resident of Manzanares, who was found guilty of attempted fraud in medial competition with false documentation, for simulating an accident: he tried to pass off an accidental fall of his motorcycle as a collision with another vehicle to collect 17,000 euros from the opposing insurer.
The judgment, which was served on the parties this month, further orders that testimony be deducted and the person, a friend of the defendant, who signed the friendly report of an accident he was not even in, be prosecuted for alleged false testimony, according to the court.
The injured party initiated the lawsuit
The defendant, who has appealed, (the sentence is not yet final), will have to pay the procedural costs of a lawsuit he initiated himself in 2016, one year after the accident. The case was tried in January in the Provincial Court of Ciudad Real (it has been notified so late due to delays caused by the strike of court clerks at the beginning of the year).
The court declares proven that he was driving alone with his Yamaha motorcycle on May 2, 2015 on a road in Horcajo de los Montes when he went off the road (around a quarter past five in the afternoon), "without the intervention of another vehicle", and after the accident he conspired with a friend, owner of a car insured by Plus Ultra, to obtain an illicit benefit. Both signed a friendly report stating that the accident had been a collision. As the company did not consider it so at first, a year later in 2016 he filed the lawsuit that has given rise to this criminal trial for procedural fraud in the Audiencia.
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The SC sentences a father for letting his 8 year old son drive
The Supreme Court upholds the Asturias Provincial Court's conviction of a father who let his eight-year-old son drive a rented car alone in the middle of Avenida Albert Einstein in Gijón.
Perhaps the facts would never have come to the attention of the authorities if the father had not been filming his son's driving outside the vehicle.
The Gijón court sentenced the father to a fine of 2,170 euros or 180 days' imprisonment if he failed to pay the fine. The sentence holds the father directly responsible for having allowed the minor to drive the vehicle, knowing that he was not allowed to do so. In addition, he was aware of the danger to other drivers and pedestrians.
The legal debate had been established between those who placed the responsibility on the minor, who was the driver, and those who blamed the father. In the end, the Supreme Court decided in favour of the latter.
"The criminal liability of the father is absolute, insofar as it is not just that he neglected to supervise the child so that he would not use the vehicle, but that he helped him to do so," the judgement states.
In addition, the court recounts how the events occurred "the minor takes the wheel, and it is he who records him (referring to the father), demonstrating an absolutely collaborating conduct in the commission of the criminal offence".
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A judgment compensates a patient for medical negligence
A patient who was left in a wheelchair and with a 75% disability following spinal surgery carried out in September 2017 at a hospital in Murcia to correct the scoliosis she suffered, is entitled to receive compensation that will be around 600,000 euros for the damages suffered as a result of this medical negligence.
The judgment of the Madrid Provincial Court upholds in part the appeal lodged on behalf of the plaintiff by the Patient Ombudsman's Office of Murcia.
Euriux Abogados as the national network of lawyers in Spain with more than 25 years of experience, explains the content of the judgement and the consequences of this medical negligence.
It states that the surgeon who carried out the operation was guilty of medical malpractice, adding that the patient was not properly informed of the risks involved in undergoing the operation, nor of the conservative options available to her.
For the court there is no doubt that due to this lack of information when giving consent, the consent "became useless", in addition to the fact that there was no indication as to why the type of surgery used for the operation was used and not another.
The judgement also comments that neither during the stay in resuscitation nor later, when the patient was already on the ward, was any neurological control carried out to check her condition.
He concludes that as a result of medical malpractice he has been left in a wheelchair and requires the assistance of others for the necessities of daily life.
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The SC rules on the tax effect of the sale of frozen bread
The Supreme Court has ruled that, for tax purposes, baking frozen loaves of bread cannot be considered to be equivalent to making bread. Therefore, establishments that sell this type of pre-cooked products cannot be considered bakeries or "bread bakeries", but rather retail sales. This was stated in a ruling published on 18 February and reported by Cadena Ser.
This is a ruling on an appeal lodged by Santander City Councilagainst a ruling by the High Court of Justice of Cantabria, which ensured that the municipal administration should return the fees for the Economic Activities Tax (IAE) that the supermarket chain Lupa had been charging.
The High Court has agreed with the supermarket chain, as it considers that putting a frozen loaf of bread in the oven or 'bake off' "does not constitute the whole process which, from the mixing and kneading of the raw materials or ingredients, concludes with the bread made and ready for sale". "At most it could be accepted that the baking or heating of the frozen bread concludes or completes a production process, but it does not complete it in any way'.
The SC states instead that "it forms part of the broader activity of retail trade in food products", for which the company was also taxed. The judgment points out that the final baking "is not a job that requires either highly specialised knowledge or complex processes or means or equipment inaccessible to consumers".
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Dismissal of a worker with Covid annulled for discrimination
The social court number 1 of Mataró (Barcelona) has annulled the dismissal of a worker whose contract was terminated by the company two days after he reported that he had coronavirus, while considering that it is a "stigmatising disease".
The judgment found that the worker was dismissed for the sole reason that he was "suspected" of having an infectious and highly contagious disease and that this circumstance can be equated to a stigmatising disease.
Euriux Abogados, as a law firm specialising in all areas of law, explains the findings of this ruling, which is a novelty in Spain.
The judgment found a "violation of the fundamental rights" of the worker and called for the nullity of the dismissal, while imposing on the company the obligation to compensate him with the payment of lost wages, some 20,059 euros, and the additional payment of 6,251 euros for the commission of a "very serious" misconduct.
The worker was dismissed on 27 March 2020, two days after being declared temporarily incapacitated after contracting Covid-19 and, according to the ruling, the real reason for the dismissal is that he was "suspected" of having an "infectious and highly contagious" disease.
Therefore, the judge considers that this situation can be equated to a "stigmatising illness", i.e. an illness that produces in third parties attitudes of "rejection, objection or fear".
When the dismissal took place, only two weeks had passed since the declaration of the state of alarm and there was an "unprecedented situation of generalised fear" of possible mass contagion, the relevant factor being the stigmatising fear it generated in others, according to the judgement.
The judgment clarifies that the company has not provided an "objective and reasonable explanation" of the reason for the dismissal that can be disassociated from the discriminatory intentionality of the dismissal.
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Ruling leaves 30,000 fines for not wearing seat belts up in the air
A Madrid court has annulled a fine for not wearing a seat belt detected by a seat belt camera. The court ruled that the photographs obtained to prove the fine did not constitute sufficient evidence to impose the fine, leaving more than 30,000 fines imposed by this same mechanism up in the air and potentially obliging the administration to return more than six million euros collected for this reason.
The complaint was filed by Automovilistas Europeos Asociados, AEA, and following the decision of the 33rd Court of Madrid, your client has had the fine of 200 euros annulled and will recover the three points that had been deducted from his driving licence.
Furthermore, the judgement states that the Provincial Traffic Chief of Cuenca was not empowered to impose this type of sanction and that the photograph was obtained by a technical means not subject to metrological control and therefore does not constitute sufficient evidence for the prosecution.
AEA has been able to demonstrate that the camera that imposed the fine was outside the metrological control of Traffic as the technical report of the Spanish Metrology Centre was issued a year before the Statute of this body included among its functions "the performance at the request of the authorities in the field of traffic and road safety of voluntary tests of equipment" that even outside the scope of metrological control are related to equipment, systems or parts thereof for the capture and reproduction of images. In other words, they can collect images, but not fine for them.
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Do you know the fine for overtaking on the right?
The Directorate General of Traffic (DGT) has launched a campaign in recent days to remind, once again, of the importance of driving on motorways and dual carriageways in the right-hand lane and using the left-hand lane only for overtaking.
In a message posted on its Twitter account, Traffic has released a video in which it explains the reason for the traffic rule and introduces it with a question that sums up the main cause: "Do you know why driving in the middle or left lane hinders traffic and creates risky situations?", the public body asks.
Do you know what fine you are exposed to? Article 31 of the General Traffic Regulations is clear in this regard: "The driver of a car or special vehicle with a maximum authorised mass of more than 3,500 kg [...] outside built-up areas, on roads with more than one lane reserved for his direction of travel, shall normally drive in the lane furthest to his right", the regulations state.
Driving in another lane to the left, leaving the right lane empty, is a serious offence and is punishable by a fine of 200 euros, but does not result in the loss of driving licence points.
Experts in Civil Law
The Civil Liability department of Euriux Lawyers defends your interests and acts independently of the insurance companies in each case. Every year there are a multitude of traffic accidents, appealing against a fine issued by the DGT, professional negligence or accidents at work that require swift legal intervention because many of the cases that arise end up in court.
Euriux Abogados offers a personalised treatment to the client who has access to his lawyer who will accompany and advise him in every legal act that is carried out during the claim.
Our knowledge of procedural law and our extensive experience allow us to provide the client with comprehensive advice on the matter, providing all the necessary means for the successful development of the case.
We are specialists:
- Trafficaccidents and road traffic accidents
- Accident at Work
- Liability of the Administration in falls on the publichighway
- ProfessionalResponsibility
- Civil Liability in the field of Business
- Civil Liability in Transport (accidents by train, bus or freight)
- Civil liability of minors.
- BuildingLiability
By relying on the services of Euriux you will be in the hands of lawyers who are fully aware of the regulations and case law relating to compensation, always seeking the best for the client.
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What is the deadline for the payment of community fees?
The limitation period for the action to demand payment of community fees of a property under the horizontal property regime is the five-year period provided for in the aforementioned article 1966-3.º of the Civil Code (and not the period established in art. 1964 CC), referring to actions ordered to demand payments to be made in years or in shorter periods, a situation in which the case of the contribution of the co-owners to the common expenses established as an obligation in article 9.1.e) LPH is fully subsumable, without the fact that it is an obligation provided for in the law itself having to determine the application of a different limitation period.
The appealability of the legal question only affects claims for unpaid fees prior to the entry into force of Law 42/2015, of 5 October, as this law has modified article 1964 CC establishing a general limitation period for personal actions of five years, coinciding with that provided for in article 1966-3.º, which has not been modified. The budgets of the community are annual and in the annual financial year the corresponding expenses are incurred which have to be paid by the co-owners according to the assigned quota.
Precisely the deferral of payments by monthly instalments, in this case of community fees, responds to the need not to overburden family economies, and it is incomprehensible that the community should allow such a long period of time to elapse - in this case, considerably more than five years - in order to demand payment from the co-owner. It is a rule inspired by favour debitoris, as it is intended to prevent debtors from being harmed by a continuous and successive accumulation of debt that could lead them to ruin.
(Judgment of the Supreme Court, Civil Chamber, 3 June 2020, appeal 3299/2017).
Gumersindo Burgos Pérez de Andrade, a jurist of great prestige, has passed away.
Euriux Abogados would like to send a big hug and our deepest condolences to the family of Luis Burgos, partner of Euriux in Malaga on the death of his father Gumersindo Burgos Pérez de Andrade, at the age of 94.
A jurist of great prestige who culminated his brilliant professional career as a judge of the Civil Division of the Supreme Court, some of whose rulings he was rapporteur for are still a point of reference in matters such as inheritance.
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