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Promotion in the workplace for performing functions above one’s position is an important issue in the labor sector, regulated by the Workers’ Statute. When an employee demonstrates abilities and skills superior to those required for their position, it is fair to consider them for a promotion to a position with greater responsibilities and remuneration. This promotion process should be carried out transparently and fairly, following the protocols established in labor legislation, especially in the applicable Collective Agreement and in the employment contract itself. It is essential for companies to recognize and value the talent of their employees, thus promoting a motivating and equitable work environment. However, there are occasions when, due to certain circumstances initially unforeseen by the worker or the company, the worker has to perform functions above their job position. When this happens, the promotion can be perpetuated, and the employee can fight for the company to recognize this improvement in category, provided that the requirements established in art. 39.2 of the Workers’ Statute are met:

2.Functional mobility to perform functions, both superior and inferior, not corresponding to the professional group, will only be possible if there are also technical or organizational reasons that justify it and for the time necessary for its attention. The employer must communicate his decision and the reasons for it to the worker representatives.

In the case of assignment of functions superior to those of the professional group for a period exceeding six months during one year or eight months during two years, the worker may claim the promotion, if not hindered by the provisions of a collective agreement or, in any case, the filling of the vacancy corresponding to the functions performed by him in accordance with the promotion rules applicable in the company, without prejudice to claiming the corresponding salary difference. These actions will be cumulative. Against the company’s refusal, and after a report from the committee or, where appropriate, the workers’ representatives, the worker may file a claim before the social jurisdiction. Through collective bargaining, different periods from those expressed in this article may be established for the purpose of claiming the filling of vacancies.

This situation has been practically seen in STS 622/2024 – ECLI:ES:TS:2024:622, where the High Court states the following:

As this Court has been holding, the consolidation of a category is subject to what is legally or conventionally established in terms of promotions, since the purpose of meeting those requirements is to maintain the principle of non-discrimination and limit the discretionary decisions of the employer that do not comply with the promotion regulations, which could cause harm to the rights of third parties interested in the regular operation of the promotion system at work in the event of a vacancy, so faced with the dilemma of the confrontation between the individual right of a worker to consolidate a professional category, for which his aptitude cannot be denied because he has performed it for a certain period of time, and the rights of those who may have the necessary knowledge and merits to access such category, one must abide by what is established for this purpose in the current regulations” (STS 1057/2021, of October 26 (rcud 4628/2018) and others cited therein).

With these premises, this Court has also understood that simply performing functions of a higher category in the temporal space and for the time stipulated by the law does not necessarily imply that it must be recognized if there are additional requirements imposed by a collective agreement for example.

In that sense, and as previously mentioned, it has been said that “The consolidation of category provided for in art. 23 of the Workers’ Statute of March 10, 1980 is subject to the need for a legal or conventional promotion… whose purpose is not other than to maintain the principle of non-discrimination and limit the discretionary decisions of the employer that do not comply with the promotion regulations, decisions that could cause harm to the rights of third parties interested in the regular operation of the promotion system at work in the event of a vacancy, so faced with the dilemma of the confrontation between the individual right of a worker to consolidate a professional category, for which his aptitude cannot be denied because he has performed it for a certain period of time, and the rights of those who may have the necessary knowledge and merits to access such category, one must abide by what is established for this purpose in the current regulations, putting in relation the legal or conventional obstacle referred to in the aforementioned art. 23-3 of the Statute with the requirement of passing promotion tests for the filling of vacant positions…, because in the holding of such tests whose motive is to contrast the abilities of the participating workers by granting them equal opportunities, the interests deserving of protection of the other workers in the company do not suffer any harm, interests that would be violated if someone were promoted, based on discretionary powers, who could have lesser merits for it compared to those who had the conditions to participate in said tests” [STS 166/2021, of February 9 (rcud 2301/2018); 772/2022, of September 27 (rcud 1960/2019), among others].

This doctrine would not apply to the case, and in the contrasted sentences no mention is made, because during the time in which functions of a higher category were performed, both in the appealed sentence and in the contrasting one, the current collective agreement did not contemplate anything regarding promotion to a higher category for performing these functions, but rather it is already provided for in subsequent collective agreements (such as the one in force for 2020 to 2024, in its art. 18.2).

It is also established that:

What the legislator requires is that the higher function has been performed for more than six months in one year (which is equivalent to more than half of the activity carried out in that year) or more than eight months in two years (which is equivalent to more than a third of that performed in those two years). That is, the legislator, not only that of 1980 from which this legal provision stems, but also the current one, with those terms intended to provide a general formula that allows to address the varied and different times of work activity that may occur in labor relations and to ensure that none of them is deprived of access to the promotion or advancement situation established.

Therefore, the High Court confirms the judgment of the Tenerife High Court, dismissing the appeal in cassation filed by the company’s representation, as it must be based on the actual time worked in the indicated periods and performing functions superior to their job position.

At Roji Abogados, we have different lawyers with experience in the area of labor law and social security. If you have any doubts or questions about labor law, whether as a company or as a worker, inquire about our fees and the possibility of having an appointment with us at:

1.- info@rojiabogados.com

2.- 952 211 011 and 607 202 361

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