Parking space: acquired right or simple tolerance?

The free use of a parking space can be consolidated as an acquired right (more advantageous condition) if two elements converge: the unequivocal will of the company to grant the benefit and its vocation for permanence. Once the right is consolidated, unilateral withdrawal is equivalent to a substantial modification of working conditions. Therefore, regardless of whether its origin is a collective agreement, an agreement, or a mere tacit concession, the company that wants to withdraw the consolidated benefit must follow the procedure for the substantial modification of working conditions.

But not all parking space uses generate an acquired right. The key lies in whether the original concession includes a revocability clause:

• If the company communicated at the time that the use of the space was not guaranteed, this origin weakens the consolidation as a more advantageous condition.

• If, on the other hand, the space was assigned nominally and maintained for years without any reservation, the risk of consolidated more advantageous condition is high.

Likewise, the salary nature of the parking space depends on the time it can be used. If the space can be used outside working hours, the courts consider it as an in-kind benefit, whereas if the use is restricted to working hours and non-transferable, it does not have a salary nature. When the space has a salary nature, its withdrawal directly affects the remuneration amount and reinforces the need to follow a substantial modification procedure (ET, art. 41).