Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Are employers required to give notice of termination?
There are no statutory notice provisions unless:
- the reason for dismissal is objective (eg, redundancy or work reorganisation); or
- for temporary contracts of more than one year in duration.
In either of these cases, 15 calendar days’ notice must be given by the employer.
Typical notice periods in employment contracts or collective bargaining agreements are:
- 15 days for blue collar workers;
- 15 days for white collar workers; and
- three months for directors.
What are the rules that govern redundancy procedures?
In Spain, a termination is treated as being by reason of redundancy if it is based on an “economic, technical, organisational or production” reason. In practice, it is often difficult for Spanish employers to determine whether they satisfy the genuine redundancy requirements.
Are there particular rules for collective redundancies/mass layoffs?
Yes, according to the Workers’ Statute, there is a collective dismissal if for economic, technical, organisational or production reasons, the employer intends to dismiss within a 90-day period at least:
- 10 employees when the total workforce is less than 100 employees;
- 10% of the total workforce when the total is 100-300 employees; and
- 30 employees when the total workforce is 300 employees or more.
There is also collective dismissal if the employer closes its business and dismisses all its employees where the number of affected employees is greater than five.
Any collective dismissal must be preceded by a consultation period, which involves the employee representatives.
What protections do employees have on dismissal?
A termination is null and void if there is unlawful discrimination under the Spanish Constitution or by law (eg, on a gender, civil status, age, religion, disability, race or sexual orientation basis).
A termination is also null and void if there are no genuine grounds for redundancy and the termination is:
- classified as a breach of the employee’s fundamental rights and political freedoms;
- made during:
o maternity or paternity leave;
o adoption; or
o a foster care placement;
- as a result of the employee requesting:
o permission to breastfeed; or
o a reduction in working hours in order to care for a child under the age of 12 or a disabled relative;
- within a period of nine months of the employee returning to work after a maternity-related contract suspension period;
- as a result of the employee being a victim of domestic violence or threatening behaviour who then exercises the right to:
o reduce or reorganise work;
o move their location of work; or
o suspend the employment contract; or
- as a result of an employee being on leave to care for a child under the age of three or caring for a family member.
Workers’ representatives are protected and terminating an employee representative is possible only in the context of an economic, technical, organisational or production-related dismissal where no other employee renders similar services. Although it is theoretically possible to terminate an employee representative for cause (eg, gross misconduct), this is often difficult in practice.
Click here to view the full article.