Companies cannot remove the restaurant ticket from their workers even if there is a state of alarm and many of them are teleworking due to force majeure. The Supreme Court has just issued a final ruling on this matter, firmly annulling the measure of the technology consultancy Capgemini to withdraw the restaurant ticket from thousands of workers during the first month and a half of the pandemic. The judges of the plenary session of the social confirm what the National Court said in the first instance and recalls that these restaurant tickets were part of their salary structure and this condition cannot be unilaterally modified by the company.
The Supreme Court establishes that restaurant tickets are not part of the salary even if they are charged on the payroll
The ruling of the Supreme Court, to which elDiario.es has had access, studies the case of the Capgemini technology consultation that eliminated the restaurant tickets of its workers from March 14, when the state of alarm began until the last day of April 2020. The company explained that this measure, which affected 5,000 workers, was launched “given the current situation of confinement” and excluding those who continued to work in person at the offices of the company or its clients.
Several unions took the measure to court when they understood that it was a substantial modification of the working conditions imposed unilaterally by the company, also going beyond the procedure established in the Workers’ Statute. In this case, the Supreme Court recalls that, in this case, the agreements signed between the company and the workers integrated and consolidated the restaurant tickets “in the salary structure of the workers.”
Now the Social Chamber of the Supreme Court, with Magistrate Concepción Ureste as speaker, 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 integrated and consolidated in its remuneration structure.”
The workers’ pockets, says the Supreme Court, noticed it at a rate of 5.40 euros for each working day actually worked, something with “economic relevance.” This was done by Capgemini without the company having also explained, in its appeal, if there were “compensations for the measure in question” to alleviate the money that its workers stopped collecting, who after all continued to eat all the days.
This means that the company skipped the provisions of Article 41 of the Workers’ Statute, causing, says the Supreme Court, “inexorably the nullity of the measure of suppression of food tickets while the state of alarm lasted, because it entailed a substantial modification of working conditions, in terms of remuneration “as the National High Court also said when deciding the appeal of the unions. This would be the same, says the Supreme, if we were talking about an extra-salary concept.
The magistrates of the plenary session of the Social Chamber of the Supreme Court insist, in the final section of the sentence to which this newspaper has had access, that in this particular case the company and workers had signed agreements that had converted the restaurant tickets in part from the “workers salary structure”. A money that they charged even in assumptions of continuous working hours without ruling out or excluding teleworked days “through the use of new technologies.” Another thing is that the agreements were broken down and elaborated finer on this type of teleworked days.
Salary or compensation
In recent years, the Supreme Court has issued numerous judgments on the restaurant tickets that companies give to their workers for daily spending on meals and on their legal nature. In the Capgemini case, the judges have concluded that it is a salary concept since it was paid independently of whether or not the workers had an expense on food. In other cases, when it is shown that it responds to a specific expense, it is treated as compensation.
A recent ruling from the Supreme Court, 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 workers have decided that it is a supplement. This decision of the Supreme, for example, left out the amount of restaurant tickets from the calculations of salary reviews, extra payments, variables, bonuses, supplements or temporary disability during a leave.
In both cases, the Supreme Court now says in this latest resolution, “the conclusion reached would remain unchanged.” Any change, even if the restaurant tickets were of an indemnifying nature, requires going through what the Workers’ Statute says. The Supreme Court explains: “The substantial changes introduced regarding its scope would also have to be processed in accordance with said precept, so that, after its application, the consequence that would be tied would also be that of estimating the demand agreed in the instance”.