LABOS Revista de Derecho del Trabajo y Protección Social
Labos. Revista de Derecho del Trabajo y Protección Social es una revista científica en materia de Derecho Laboral y Seguridad Social. Es una publicación editada desde 2020, con una periodicidad cuatrimestral. Para la publicación de originales, Labos utiliza un sistema de revisión externa por pares, siendo los evaluadores científicos expertos en el conocimiento de las materias en las que se investiga y cuyos nombres se irán publicando en la página web de la revista. Se trata de una Revista científica que se publica en formato digital de acceso abierto (OA).
Loa autores ceden a la Revista Labos los derechos de reproducción y distribución, así como cualquier forma de explotación del trabajo.
Copyright (c) 2025 LABOS Revista de Derecho del Trabajo y Protección Social
This study examines the differentiated legal grounds for compensation and consequences of fair, unfair, and void dismissals under current Spanish labor regulations. Based on these legal bases, it analyzes the impact of the decision of the European Committee of Social Rights (ECSR) against Spain for breach of Article 24 of the European Social Charter (ESC), which places assessed compensation for unfair dismissal at issue, both in a judicial review of conventionality and in a possible legislative reform. I develop legal arguments that conclude with the lack of direct application of Article 24 of the ESSC and the judicial impossibility of establishing additional compensation for unfair dismissals, even more so after the Supreme Court ruling of December 19, 2024, which clarifies the scope of the conventionality review. I develop legal arguments that conclude with the absence of binding force of the ECSR decision on unfair dismissals. The study concludes, on a political level, with various options for reforming unfair and invalid dismissal in this context.
From subordinate work to vulnerable work. (Critical note on the new proposals for universalization of labor protection regulations)
The study analyzes the evolution of work towards new formulas in the context of digitalization and current service capitalism, and how such evolution compromises traditional solutions for labor regulations. It denounces the natural evolutionary limits of “alienness” and “dependency” and questions their ability to continue exclusively defining the field of new labor protection legislation. But it also criticizes the new proposals for labor protection brought forward in this context. First, linking labor protection with the idea of “economic dependence.” And, second, connecting the new labor legislation with the circumstance of being “vulnerable work”, which is assumed whenever it is any type of productive activity carried out “without contribution of capital or company structure”.
Calculation of pensions arising from occupational risks for workers on reduced working hours. A discriminatory regulation (with and without a gender perspective)
The CJEU has not found sufficient evidence –at least from a statistical perspective– to conclude that the calculation of permanent disability pensions arising from occupational risks for workers on reduced working hours due to work–life balance measures constitutes sex discrimination. This is despite the fact that the regulatory base is calculated on the salary received at the time the contingency arises, which is lower than usual precisely because the worker is on reduced hours. The absence of appropriate statistics should not prevent this regulation from being deemed as discriminatory. Spanish law and EU law support this conclusion in all cases of temporary reductions in working hours, without relying exclusively on sex discrimination.
Digital content creators. A new grey area in labour law?
The emergence of digital content creators (influencers, bloggers, instagrammers, tik-tokers, youtubers, etc.) requires, from a labour law perspective, a reflection on the nature of their activities. The purpose of this is to identify the possible concurrence of the characteristic features of an employment relationship and, therefore, the possible consideration of them as employees, hence their inclusion in the scope of application of labour law. The plurality of the activities carried out by these digital content creators opens up a reflection on their possible consideration as artists, trade representatives, or standard’ employment relationship. Are we facing new grey areas in labour law?
Abusive dynamics of web-based platforms dedicated to online microtasks and potential avenues for protection
The objective of this study is to highlight a multifactorial and transnational reality, still atypical for the Spanish legal system, which must be differentiated and addressed: the work of web-based digital platforms workers dedicated to online microtasks as a new form of job precariousness. The challenges which derives from the obligation to transpose Directive (EU) 2024/2831 of the European Parliament and of the Council of 23 October 2024 on improving working conditions in platform work will be addressed from three main perspectives, enabling the first steps to confront this problem: the legislator, the Labor and Social Security Inspection and the social agents.
Regulation of work on digital platforms. State of the art and commentary on regulatory changes
This study focuses on one of the most controversial issues in recent years within labor and social security law: platform work, which in most cases has resorted to commercial contracting, sometimes in fraudulent practice. In this sense, although the phenomenon of false self-employment is by no means a new problem, it has undoubtedly acquired greater dimensions as a result of the proliferation of this type of company. Following the momentous Supreme Court ruling 805/2020 of September 25, which established the existence of an employment relationship for platform delivery drivers, the Spanish legislator, on the one hand, approved Law 12/2021 (known as the “Rider Law”) and, on the other, established a new criminal offense (Article 311.2 of the Criminal Code) that punishes those who hire fraudulently with prison sentences. The directive 2024/2831 is also discussed, which addresses the improvement of working conditions in platform work in a much broader way than the national standard.
Prohibited AI practices in the workplace. Analysis and possible solutions from Spanish labour legislation
This article explores the relationship between prohibited artificial intelligence practices established by Regulation (EU) 2024/1689 (Artificial Intelligence Regulation) and Spanish labour legislation. Beginning with a systematic review of prevalent academic concerns regarding artificial intelligence in the employment context, and through an analysis of relevant legal provisions, the article defines these prohibited practices and hypothesises which among them bear the closest connection to employment relationships. Additionally, given their relation to prohibited practices and the use of similar technologies, the article examines points of intersection with Directive (EU) 2024/2831 (Platform Work Directive). Through this comprehensive approach, the article assesses whether there is a necessity to amend key elements of Spanish labour law, while also highlighting certain grey areas that will likely require future clarification.
Ensuring corporate liability for the payment of surcharges on Social Security benefits
The validity of the surcharge on Social Security benefits for failure to comply with occupational risk prevention measures
What to do with the Social Security benefits surcharge ? Thoughts and suggestions for a much needed debate
The surcharge for social security benefits, established in article 164 of the current Social Security regulation, is an odd concept, hybrid and anachronistic, with an insufficient and confusing legal framework. Criticisms of this concept are practically unanimous. Many are those who defend its modification, even its suppression, but legislators have not taken any action in the face of these criticisms and so, this peculiar surcharge has been with us for over a century. This situation benefits nobody. Workers or their successors have to face a tangle of administrative and judicial proceedings in order to receive the surcharge; if they do in fact receive it at the end of the road, because, since employers are not allowed to have insurance for it, there is a high probability that the Treasury of Social Security will declare the surcharge uncollectible, especially when the sums are often very high. Results are no more satisfactory from the employer's perspective: the surcharge might be disproportionate or mistimed. This paper reflects on some of the most problematic aspects of this legal concept and offers some suggestions in terms of lex data and lex ferenda, as contributions to a debate that must be reopened about an urgent legal reform.
Blasco Jover, Carolina. Cuestiones clave sobre la readmisión y los salarios de tramitación en el despido improcedente
Montoya Medina, David. Enfermedad, contrato de trabajo y discriminación por razones de salud
The benefits surchage. Chronicle of an anachronism
Labor relations in the face of climatic emergencies. The reform of the Workers' Statute by Royal Decree-Law 8/2024
Organic Law 1/2025, of January 2, on measures regarding the efficiency of the Public Justice Service, and its effects on social jurisdiction
Some reflections on the impact of rd 550/2020 on the work activity of the “homo aquaticus professionalis
The Law 47/2015 establishes different categories of employed and self-employed divers. Essentially, this regulation applies to professional divers dedicated to the extraction of marine resources and divers with professional qualifications in industrial activities, included in the special social security regime for the sea, as opposed to divers with sport-recreational qualifications, initially excluded from it. Despite this fact, the truth is that diving activities turn out to be many more. This is highlighted by RD 550/2020, which regulates the safety conditions of diving activities. A critical reading of the RD 550/2020, allows us to see the direct impact on the work activity of those we have chosen to call ‘homos aquaticus professionalis’.
The corporate labyrinth of harassment protocols
This article examines the complex regulatory framework governing corporate protocols against workplace violence and harassment in Spain. It traces the legislative evolution from Organic Law 3/2007, of March 22, on effective equality between women and men, to more recent statutes, including Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom; Law 2/2023, of February 20, on the protection of whistleblowers reporting regulatory violations and anti-corruption efforts; and Law 4/2023, of February 28, on the real and effective equality of trans individuals and the guarantee of LGTBI rights. The study identifies regulatory overlaps, implementation challenges, and gaps in victim protection and prevention. It concludes with recommendations to streamline and harmonize these regulations, enhancing legal certainty and improving the effectiveness of workplace harassment prevention and eradication.
The conversion of a temporary contract in a permanent contract due to non-compliance with its validity requirements
The purpose of this study is to analyse the mechanism provided in articles 15.4 and 11.h) of the Workers’ Statute law after the 2021 labour reform, which allows structural and training temporary contracts to be transformed into an indefinite contract when certain legal requirements are not met. This is a confusing mechanism, with unclear profiles. Despite the legislator’s lack of precision, and after study its legal regime, we conclude that the legal requirements whose non-compliance turns a temporary contract in ah permanent contract will be those inherent to the validity and relate to the object and cause of the contracts, with no other extensive interpretations. In fact, the legislator does nothing more than transfer to the labour law system the doctrine of fraud of law, doctrine than, on the other hand, was already included in the previous regulation.
The prohibition of slavery and similar practices in the European human rights system
Article 4 of the European Convention on Human Rights (ECHR), which prohibits slavery, servitude and forced labour, has evolved in its application to include human trafficking. While this broadens the protection of rights, it also raises significant challenges, such as the need to define a minimum threshold of severity that preserves the effectiveness of the system. This threshold should be grounded in the ‘classical’ elements of the legal framework addressing forced labour, servitude, and slavery –namely, coercion and the severity of exploitation– as these are critical in distinguishing conduct warranting the most serious sanctions from that which, while objectionable,does not fall within the protective scope of Article 4.
In recent decades, there has been a process of laborization of young researchers, who demanded to leave pre-doctoral scholarships behind and be equipped with an authentic catalog of labor rights. In 2011, the Science Law created the pre-doctoral contract, whose regulatory development did not reach until Royal Decree 103/2019, of March 1, which approved the Statute of pre-doctoral research personnel in training (EPIF). However, the EPIF still does not respond to one of its main demands: the right to compensation upon termination of the pre-doctoral contract. Law 17/2022, of September 5, modifies the Science Law by incorporating important changes in the pre-doctoral contract, including a new right to compensation for expiration of the agreed time. This paper analyzes the dysfunctions of this contractual modality, those generated by the new reform and the contentious issues that still exist.
This paper explores the challenges digitalisation poses to the traditional concept of working time, emphasizing the need for an objective, transparent system to measure daily hours and uphold labor standards. It also examines the evolving legal framework, with a focus on Italian legislation and case law, addressing the classification of workers employed through digital platforms and their employment rights. Finally, the paper investigates digitalisation’s impact on industrial relations, underscoring the critical role of employees and their representatives in mitigating opacity in data processing and the functioning of automated monitoring and decision-making systems within employment relationships.
The odyssey of the clauses for the maintenance and improvement of labour rights in public sector contracts
The social and labour clauses in public sector contracts have been subjected to rigorous constitutional and legal scrutiny by administrative appeals and advisory bodies, as well as by regional courts. This scrutiny, the results of which are predominantly biased towards the unlawfulness of the clauses in question, is particularly acute with regard to the clauses that the contracting bodies incorporate, at their discretion, into the specifications and the contract. Furthermore, it is particularly acute with regard to the provisions aimed at maintaining or improving the employment rights of the persons assigned to the contract. This article contrasts the objections raised to remuneration clauses by the main legal actors with the margins defined by the law.
maintenance and improvement of working conditions
The right to the adaptation of working hours and the form of provision under Article 34.8 of the Workers' Statute (ET) when the dependent is a son or daughter over 12 years old
The right to the adaptation of working hours contemplated in Article 34.8 of the Workers’ Statute (ET) is analysed, focusing on requests related to the care of children over twelve years old following the reforms introduced by Royal Decree-Laws 6/2019 and 5/2023. Through a jurisprudential study, the controversies related to the interpretation and application of this provision are examined, identifying how courts assess care needs and the conditions required to justify such requests. Discrepancies in judicial rulings and the importance of consolidating uniform criteria to reduce legal uncertainty are highlighted. Finally, the role of collective bargaining in clarifying and expanding these rights is emphasized.
The doctrine of the link and the tax deductibility of the remuneration paid to the social administrator. evolution of the jurisprudence of the third chamber on the issue
Directors remuneration is subject to legal requirements under Commercial Law. Whether non- compliance with these requirements can lead to the non-deductibility of the remuneration for tax purposes has been the source of a long-standing controversy, which has been especially intense in the case of directors who are also managers in the day-to-day of the companies. This work reviews the origin of this controversy, the recent judgements of the Supreme Court which seems to pacify it, and the issues that can be deemed to be still opened in the tax treatment of the remuneration paid to directors.
The gender perspective as a driver of change towards a more fair and equal society in the field of labour relations and social protection
Real equality between women and men remains one of the great challenges of the 21st century in all areas of social, political, and economic life. From this observation, the gender perspective should not be considered merely an ideological construct, but rather a methodology to be taken into account both in the process of legal creation and in the subsequent interpretation and application of the rules. This paper explains the advances made from a gender perspective in the recognition of labor and welfare rights, highlighting the room for improvement that lawmakers still have in this area. It then critically addresses how this analytical methodology is being integrated into the rulings of the social jurisdiction, particularly those of the Supreme Court. The conclusion is that, to achieve full equality between women and men in labor and social security matters, it is necessary, among other measures, to legislate and judge with a gender perspective, without complexes and with the will to reverse the situations of inequality still suffered by women, while ensuring that this is done in respect of the principle of separation of powers and without resorting to interpretative excesses that undermine the great value of this hermeneutical tool.
The gender perspective in social jurisdiction: misunderstandings and half-truths.
This article aims to delve into the reasons why the gender perspective, as a technique of interpretation, application and regulatory integration, continues to be the subject of debate. To this end, we will reflect on the persistence of the reasons that determined the promulgation of Organic Law 3/2007, as well as on the misunderstandings and half-truths that distort the understanding of an essential instrument to achieve the effectiveness of the principle of equality between women and men, among them its exclusive applicability to the female sex.
The gender perspective. Notes on the impossible
From the hysteria to the fibromyalgia, “women's diseases” that are repugnant to the Law
A critical approach, from a medical perspective, to the exclusion of women from disease research is projected onto a masculine human model. This has led to different diagnoses and treatments depending on the patient’s sex. It is more likely that, when faced with the same complaint or symptomatology, psychological attributions are made to women and physical attributions to men. This devaluation of “women’s diseases,” coupled with the stereotype of moral inferiority, sustains the so-called gender pain gap, from hysteria to fibromyalgia, and has also had its harmful effects on women in the legal field. As a paradigmatic example, the now repealed RD 1971/2022 of December 23 is analyzed, through the recent ruling of the TSJ of the Canary Islands of December 19, 2024 (Rec. 1198/2023) and its dissenting opinion, in relation to the invisibility and omission of assessment of fibromyalgia, chronic fatigue syndrome and multiple chemical sensitivity syndrome, which are eminently feminine diseases.
Nuria Ayerra Duesca. Prostitución y Derechos Laborales
Este artículo reseña: Nuria Ayerra Duesca. Prostitucion y derechos laborales. Aranzadi, 2024.