The Supreme Court has confirmed the nullity of the collective dismissal of twenty-five cleaners from the Parador de Alcalá de Henares (Madrid) that took place in September 2020, considering that the winning company failed to comply with its obligation to subrogation of personnel after being assigned the external cleaning service of the paradores.
Paradores subcontracts to external companies to take care of cleaning, which includes room cleaning, which is an essential activity in a hotel.
In a ruling, collected by Europa Press, the Social Chamber condemns the successful bidder Eulen SA to the immediate reinstatement of those affected to their jobs, in addition to the payment of the salaries that they stopped receiving from the date of termination, the September 16, 2020.
In August 2020, the company Eulen was awarded a contract to carry out this service in the Paradores located in the central, southern and Canary Islands. Said contract established the obligation of subrogation of the personnel who carried out their work with the previous successful bidder (Samsic Iberia).
But on September 14 of that year, Eulen informed the cleaning staff of the Parador de Alcalá de Henares that he was not going to proceed to assume the employment relationship they had with the previous company.
Now, the Chamber dismisses the appeal filed by Eulen SA against the judgment of the Superior Court of Justice of Madrid (TSJM) that declared the collective dismissal null because it understood that said company failed to comply with its obligation to subrogation of personnel after being awarded the external cleaning service from the Paradores of Lot 1 (Central, South and Canary Islands).
Accredited facts show that this service was performed by Samsic Iberia SLU until its award by Paradores to Eulen SA in 2020. The contract specification specified that the successful bidder was obliged to provide the material means and human structure for the provision of the service as a block Comprehensive cleaning package and unit.
In addition, she was obliged to subrogation of the personnel. Eulen SA took charge of all the chambermaids in lot 1 except those of the Parador de Alcalá de Henares, based on the fact that they were governed by the Accommodation Agreement of the Community of Madrid, which does not provide for the duty of subrogation of the staff.
The court applies its doctrine on business subrogation, which was updated to bring it into line with that of the CJEU, which in summary states that when the incoming company assumes a significant part of the productive unit in activity mainly based on labor, the labor subrogation, regardless of other factors, including the content of the applicable collective agreement.