Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Which issues would you most highlight to someone new to your country?
The Spanish legal system is based on the principles laid out by the Spanish Constitution of 1978. Spanish law is affected by regionalism and autonomous communities each have their own responsibilities and particular laws. Political uncertainty has been created as a result of the Catalan Parliament’s declaration of independence in October 2017. The Spanish government is seeking to re-establish constitutional democracy in Catalonia and has called a new election in an attempt to resolve the political uncertainty.
Companies setting up operations in Spain should seek specialist assistance to ensure that their relationships with employees are legally compliant.
What do you consider unique to those doing business in your country?
Employers and employees are free to negotiate employment terms and conditions but must respect the minimum standards set out in Spanish and regional law, including standards established in any applicable collective bargaining agreements.
Is there any general advice you would give in the employment area?
The Spanish courts tend to be pro-employee as they usually view the employee as the weaker party. If in doubt, the judge will most likely rule in favour of the employee.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
Not currently, apart from possible reforms to regulations relating to self-employed individuals. The most recent employment reforms were carried out in 2012.
What are the emerging trends in employment law in your jurisdiction?
Employee 3.0 The transition from physical to virtual workspaces, which has led to the creation of the concept of the ‘employee 3.0’, also referred to as ‘Knowmads’. In relation to this, in recent years there has been a significant growth in teleworking, which will undoubtedly have an effect on future employment legislation.
Digital identity Currently, 70% of job candidates use social network platforms to find work. Headhunters are aware of this trend but, beyond focusing on professional networks such as LinkedIn, there is a prevailing tendency to randomly search for the online identity of a potential candidate, which can create potential legal issues.
Job mobility v jobs for life Since the 2012 employment reforms, the downward trend in the number of jobs for life has continued. Further, Spain’s economic recovery is driving an increase in economic activity which will, in turn, encourage professionals to seek improvements in their working conditions, thereby driving up costs for employers.
Gender inequality The struggle against gender inequality in the workplace is an ongoing issue, but no new legislation on the topic has been proposed.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
Employment relations in Spain are governed by a large number of regulations which are derived from:
- the international community;
- the Spanish state (Parliament and government);
- collective bargaining agreements (by sector and geographical application);
- employment contracts; and
- working practices.
Case law also plays an important role in interpreting legal provisions.
The main source of employment law in Spain is the Workers’ Statute, which defines:
- the respective rights of employees and employers;
- the general terms of employment contracts;
- the procedures for dismissal; and
- collective bargaining.
Who do these cover, including categories of worker?
The legislation covers employees, workers and self-employed contractors.
Are there specific rules regarding employee/contractor classification?
Whether an individual is an employee, a worker or a self-employed contractor is a question of both law and fact.
According to Spanish regulations:
- a self-employed person (‘autónomo’) renders services on his or her own account and outside the scope of an organisation and direction of another person; and
- an employee or worker is an individual who voluntarily renders his or her services for compensation on behalf of another party, within the scope of the organisation and management of another, physical or legal person (ie, the employer).
Must an employment contract be in writing?
While it is recommended that a comprehensive written contract of employment is created, it is not a legal requirement, with some exceptions.
If the contract is verbal, either of the parties can require at any time that it be formalised in writing.
The following types of contract must always be in writing:
- apprenticeships and training contracts;
- part-time contracts;
- fixed discontinuous contracts (eg, individuals engaged to work on a seasonal basis for multiple years for the same employer);
- fixed-term contracts (this only applies to contracts which are four weeks or more in duration);
- replacement contracts;
- teleworking contracts; and
- contracts for workers hired in Spain to perform services abroad.
Are any terms implied into employment contracts?
Certain terms are implied in every contract of employment. These include the employee’s duty to:
- serve the employer faithfully;
- obey lawful and reasonable orders; and
- exercise reasonable skill and care.
Employers have a duty to:
- pay wages and provide work;
- provide a safe system of work; and
- act in good faith to maintain trust and confidence in the relationship between the employer and employee.
In addition, all the minimum rights set out in the Workers’ Statute and the applicable collective bargaining agreement are implied in employment contracts.
Are mandatory arbitration/dispute resolution agreements enforceable?
Yes, although the use of such agreements is optional.
How can employers make changes to existing employment agreements?
An employment contract cannot normally be altered without the consent of both parties. However, there are a limited number of situations where the employer can make a unilateral change to an employment contract. The changes must not relate to terms that are considered essential in the employment relationship, including but not limited to:
- working days;
- working hours;
- salary, including:
- details of specific elements; and
- date of payment;
- work and performance systems; and
- tasks that are outside of the designated job categories, where these exceed the limits set by Article 39 of the Workers´ Statute for task mobility.
Is a distinction drawn between local and foreign workers?
No, but foreign workers must be lawfully entitled to work in Spain.
The rules relating to individuals who are not nationals of European Economic Area countries or Switzerland and who do not have the right to live and work in Spain vary, according to:
- the intended length of stay;
- the purpose of stay;
- job skills;
- the labour market; and
- the nationality of the individual.
Employers can be fined up to €187,515 for every employee who does not have the right to work in Spain. It is also a criminal offence for employers to repeatedly employ someone who does not have the right to work in Spain.
What are the requirements relating to advertising positions?
Employers can use various means to advertise job positions, including social media and should ensure that they do not discriminate during the advertising process. A job applicant can bring a claim against a potential employer for:
- discrimination in the arrangements made for recruitment;
- discrimination in the terms of employment offered;
- discrimination as a result of a refusal or deliberate failure to offer employment; and
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
As a general rule, employers in Spain cannot require a prospective employee to supply a certificate of convictions. However, if the employer is a Spanish public body (eg, the Bank of Spain or the Spanish Parliament) it can require an employee to supply a certificate. Otherwise, the certificate can be supplied only with the consent of the employee.
Only private citizens aged over 18, acting individually or through an authorised representative, may request a certificate of convictions for themselves and they must also state the purpose of the request.
Employers cannot make an up-to-date certificate of convictions a condition of being considered for a job unless:
- the company’s activities involve regular contact with minors as the employer is required to check that the job candidate has no sexual criminal record (under Article 13.5 of the Organic Law on Minor Protection); or
- the position has specific characteristics (eg, those of a security guard), in this case the employee must provide the potential employer with a certificate from the public authorities evidencing the absence of any criminal record.
(b) Medical history?
Medical conditions constitute ‘specially protected data’ under Article 7.3 of the Constitutional Law on Data Protection 15/1999. Therefore, if the employer seeks to collect data relating to the health of the potential employee, the employee must expressly consent beforehand. The consent must be in writing.
Article 4 of the Workers’ Statute prohibits discrimination and harassment on the grounds of disability both when applying for and during employment. Employers should not ask candidates to disclose whether or not they suffer from any disability or require candidates to undergo a prior medical examination, as this could violate the Workers’ Statute. However, there are exceptions for jobs where fitness is essential to the individual’s ability to perform the job (eg, pilots, drivers or any other profession which requires a specific level of fitness) and jobs that involve a risk of occupational diseases.
(c) Drug screening?
Employers are only authorised to carry out drug screening:
- with the employee’s consent;
- to prove the existence of a habitual drug addiction; or
- to prove the existence of a risk to other employees or third parties.
(d) Credit checks?
Employers are not allowed to obtain creditworthiness information that is not related to the job being recruited for, unless the employee gives his or her consent. Examples of where an employer could seek such information might include banking staff or employees working in an accounts department.
However, employers can access public registers and other official information that is accessible to the general public.
(e) Immigration status?
Before allowing a job applicant to commence work, employers must check and ensure that he or she has the residence and work authorisation that confers the right to work in Spain.
The specific requirements for a non-European Economic Area or Swiss national to obtain an appropriate visa are:
- a valid passport or travel document;
- evidence of sufficient financial means – including for any accompanying family – for the duration of the assignment;
- a police records certificate from the country of origin or place of residence covering the previous five years, which has been endorsed in accordance with the Hague Convention or has been duly notarised; and
- an original doctor’s medical certificate verifying that the applicant is free from any contagious diseases, drug addictions and mental illnesses.
(f) Social media?
It is increasingly common for employers to carry out pre-employment vetting of potential employees by researching their social media and general internet profile. For employers to use such data lawfully, the data must be in the public domain. Employee consent is not required, although it is generally regarded as best practice to notify job applicants that this will take place.
Employers need to be careful that the data which they obtain and rely on in making their decisions does not have a potentially unlawful discriminatory element, such as evidence of religious affiliations or sexual orientations.
Employers are free to conduct other background checks, including but not limited to:
- identity verification;
- resumé verification; and
- reference checks.
However, such checks must be completed within the limitations imposed by the Constitutional Law on Data Protection.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The national minimum wage in Spain is currently:
- €23.59 per day;
- €707.70 per month; and
- €9,907.80 per year (14 payments).
The minimum wage for part-time workers is calculated on a pro-rata basis.
The national minimum wage includes not only the basic wage, but also other benefits in kind, including but not limited to:
- company vehicles;
- private medical insurance; and
- meal vouchers.
However, the percentage of such benefits cannot exceed 30% of an employee’s total salary.
Collective bargaining agreements (CBAs) often provide for a minimum wage, which cannot be less than the national minimum wage.
Are there restrictions on working hours?
Maximum working week Excluding overtime, the maximum working week cannot exceed on average 40 hours per week calculated over a period of 12 months.
Exceptions to this limit exist in certain industries (eg, fishing, retail, surveillance and security services) or for certain individuals (eg, senior executives).
The Spanish Supreme Court has held that employers are no longer required to keep a record of ordinary indefinite-term employees´ working hours (management and other non-management employees).
Therefore, the obligation of employers to keep records of working time is now limited to:
- all working hours of part-time contracts or contracts with special working schedules; and
- overtime worked by all employees (excluding senior and executive management staff).
A CBA cannot provide for hours that exceed the statutory limit.
Through a CBA or by agreement between the company and the workers´ representatives, an irregular distribution of the working hours throughout the year (ie, an annual hours agreement) can be put in place. In the absence of an agreement, the company can only distribute 10% of the irregular working hours throughout the year, the rest being fixed. The distribution must comply with statutory minimum daily and weekly rest periods and an employee must be informed five days in advance of the exact date and time of the irregular working days.
Maximum working day The maximum working day is nine hours.
However, exceptions apply for:
- employees under 18 who cannot work more than eight hours per day;
- certain professions and industries – where workers operate under special conditions (eg, seafarers); and
- when the parties have entered into a flexibility agreement whereby 10% of annual working time can be distributed irregularly during the year and that extends the length of the working day.
Flexible working hours in excess of the nine hours per day limit can be agreed under a CBA or between the employer and the employee.
Hours and overtime
What are the requirements for meal and rest breaks?
The rules for rest breaks are as follows:
- after 4.5 hours work (for those aged 18 or under) there must be at least 30 minutes’ rest;
- after six hours work (for those aged over 18) there must be at least 15 minutes’ rest;
- there must be 12 hours’ daily rest between shifts;
- there must be weekly rest of two consecutive days for those aged 18 or under; and
- there must be weekly rest of 1.5 days, which will generally include a Sunday for those aged over 18 (weekly rest can be accumulated over a maximum period of two weeks).
How should overtime be calculated?
The maximum amount of overtime is 80 hours per year.
In exchange for working overtime, employees are entitled to either:
- payment of overtime at least equal to their normal salary; or
- compensatory time off.
The employer is free to choose between offering overtime pay or time off in lieu.
If the CBA or the individual employment contract does not provide for one of these alternatives, overtime should be compensated by time off within four months of when it was worked.
Overtime hours and pay are usually governed by the applicable CBA which will often provide for more generous entitlements. A premium equal to 50% of the employee’s normal salary per hour worked is quite common.
What exemptions are there from overtime?
Senior employees (employees who report to the Board of Directors and have managerial powers) can and usually do waive their right to overtime pay or compensatory time off.
Is there a minimum paid holiday entitlement?
The minimum holiday entitlement is 30 calendar days per annum, excluding statutory and public holidays. This period is paid and includes:
- regular salary, including variable commissions and incentives received regularly or frequently by an employee; and
- the cash equivalent of contractual benefits an employee would have received if he or she had worked during this period (eg, health insurance, life insurance and company car).
However, this excludes overtime or work-related allowances (eg, mileage and expenses).
Other than at termination, employers cannot offer pay in lieu of holiday. Unless agreed between the parties, untaken holiday cannot be rolled over into the following holiday year.
The applicable CBA, company policy or employment contract may provide for more generous holiday entitlements.
What are the rules applicable to final pay and deductions from wages?
Deductions from wages are only permitted if agreed in the employment contract or provided for in the applicable CBA.
What payroll and payment records must be maintained?
Employers must keep records of their employees’ payments and deductions for as long as the employee or other bodies, such as social security, are able to challenge the sums paid or the tax treatment applied (which is ordinarily four years).
Discrimination, harassment & family leave
What is the position in relation to:
Employees and job applicants are protected against discrimination on grounds of age under the Workers’ Statute.
Employees and job applicants are protected against discrimination on grounds of race (including origin and nationality) under the Workers’ Statute.
Employees and job applicants are protected against discrimination on grounds of disability under the Workers’ Statute.
Employees and job applicants are protected against discrimination on grounds of gender under the Workers’ Statute.
(e) Sexual orientation?
Employees and job applicants are protected against discrimination on grounds of sexual orientation under the Workers’ Statute.
Employees and job applicants are protected against discrimination on the grounds of religion or belief under the Workers’ Statute.
Medical conditions are not by themselves a protected characteristic under the Workers’ Statute. Certain medical conditions may constitute a disability – which is a protected characteristic under the Statute. This is also the case for pregnancy – which is also a protected characteristic.
Employees and job applicants are also protected under the Workers’ Statute against discrimination on the grounds of:
- social conditions;
- political opinions;
- affiliation or non-affiliation with a trade union;
- language inside a Spanish territory; and
- relationships with other employees.
Family and medical leave
What is the position in relation to family and medical leave?
Maternity leave and pay Employees are entitled to a maximum of 16 weeks’ maternity leave, comprising:
- six compulsory weeks which must be taken by the mother following birth; and
- 10 flexible weeks which can be used either before or after childbirth or can be transferred to the working father, whether or not he is married to the mother, subject to being registered with the State Social Security System. This time off can be taken concurrently or successively.
The 10 weeks cannot be transferred to the father if the mother's return to work before the end of the leave would endanger her health.
The 16 weeks' leave can be extended in the following circumstances:
- in the case of multiple births, in which two weeks’ additional leave per child is offered;
- in the case where the child is born with a disability, in which two weeks’ additional leave is offered;
- in the case of premature birth, in which 13 weeks’ additional leave is offered; and
- in the case of the hospitalisation of the child, in which 13 weeks’ additional leave is offered.
The employment contract, applicable CBA or company policy can offer more generous entitlements.
The mother is also entitled to time off to attend antenatal medical appointments, parenting and birth preparation classes as well as time post-birth for breastfeeding purposes.
The mother has a right to return to her previous position. In addition, during the nine months following the birth, the mother is entitled to work one hour less per day without any reduction in her salary. The hour can be taken in two separate 30-minute breaks. Alternatively, the employee can elect to shorten the working day by 30 minutes or accumulate the time as paid working days (15 days approximately).
This right is transferable to the working father.
These rights are gender neutral and are applicable to same-sex couples, adoptions or family placements and guardianships for the purpose of adoption or fostering.
Although all employed mothers are entitled to maternity leave, they will only be entitled to social security benefits if they satisfy the social security eligibility requirements. Once the mother meets these requirements, she is entitled to benefits equal to 100% of her average monthly salary, capped at €3,751.20 (as at January 1 2017) for the duration of her leave.
If she does not satisfy the eligibility requirements, the mother will be entitled to a flat rate benefit of €532.51 per month, equal to €17.75 per day, for up to 42 days.
Paternity leave and pay Subject to satisfying the eligibility requirements, the father is entitled to four weeks’ and two days’ leave as follows:
- two days ‘birth leave’ at the time of childbirth (if travel is required, he is entitled to two additional days); and
- four continuous weeks’ paternity leave that can be taken after maternity leave, this may be increased in the event of multiple childbirths, adoptions or foster care by two days for each child from the second child onwards.
This leave is independent of shared rest periods of maternity leave entitlement.
The entitlement to this leave is gender neutral and therefore open to same-sex couples.
Although uncommon, the employment contract, company policy or CBA may provide more generous entitlements.
Different rules apply to public sector employees.
Fathers are entitled to regular salary during the two days’ birth leave.
To be entitled to paternity pay, the employee must be registered with Spanish Social Security Services and must have been in paid employment for 180 days in the previous seven years (or 360 days during their entire working life).
If he or she meets these requirements, he or she will be entitled to social security benefits equal to 100% of his or her average monthly salary, capped at €3,751.20 (as at January 1 2017). However, unlike maternity pay, if the parent does not meet the minimum social security eligibility requirements, he or she will not be entitled any flat rate benefit.
Adoption leave and pay Parents who adopt or act as foster parents are entitled to up to 16 weeks’ leave when:
- the child is aged under six; or
- the child is aged over six but suffers from a physical or mental disability.
The employee is entitled to two extra weeks per child in the event of multiple adoptions and fostering. If both parents work they can share this leave, which can be taken either concurrently or successively. If taken concurrently, the total length of absence cannot exceed the maximum permitted.
If the employee satisfies the social security eligibility requirements, he or she will be entitled to social security benefits equal to 100% of his or her average monthly salary, capped at €3,751.20 (as at January 1 2017).
If the employee does not satisfy the eligibility requirements, he or she will be entitled to a flat rate benefit of €532.51 per month, equal to €17.75 per day, for up to 42 days.
Parental leave Both parents have an individual right to take unpaid parental leave to care for a child for up to:
- three years following childbirth; or
- three years from the date on which the child is placed for adoption or permanent fostering.
If the parents are employed by the same employer, the employer may in certain circumstances and where the business needs require, restrict their ability to take parental leave simultaneously.
If the parent returns to work within the first year of parental leave, he or she will be entitled to return to his or her former position. If the parent returns to work within the second or third year of parental leave, he or she will be entitled to a role within the same professional group or equivalent category.
The Workers’ Statute does not provide for pay or state benefits during parental leave.
Sick leave and pay Employees are entitled to up to 12 months’ sick leave. Subject to obtaining a doctor’s certificate, sick leave can be extended by up to a further six months.
At the end of the 18-month sick leave period, the social security body determines whether:
- the employee is fit to return to work;
- the employee is suffering from a permanent disability or illness and therefore is unable or unfit to return to work, in which case his or her employment contract will end and the employee will be entitled to a state pension; or
- the employee does not suffer from a permanent disability or illness, is expected to recover, but remains unfit for work, in which case he or she may be entitled to a further extension of up to six months. The maximum potential period of sick leave is therefore 24 months.
Sick pay for non-work related injuries and illnesses An employee is entitled to a percentage of his or her salary, the total amount of which is capped at €3,751.20 per month (as at January 1 2017). The multiplier used to determine the amount of sick pay is known as the ‘average daily base’ as used to calculate the social security contributions that applied during the month before the sick leave:
- days one to three – there is no statutory requirement for either the employer or the state to pay the employee;
- days four to 20 – the employee is entitled to sick pay from the employer equal to 60% of his or her reference salary (capped). This amount cannot be recovered from the state; and
- day 21 onwards – the employee is entitled to sick pay from the employer equal to 75% of his or her reference salary (capped). This amount can be recovered from the state.
After 18 months’ sick leave, the employer will no longer be obliged to pay sickness-related social security contributions for the employee.
Sick pay for work related injuries and illness For work related injuries and illnesses, the employee is entitled to sick pay from the employer equal to 75% of his or her reference salary (capped) from day one onwards. This amount can be recovered from the Mutua Madrileña (a non-profit Spanish insurer).
What is the position in relation to harassment?
Harassment can occur when a person engages in unwanted conduct:
- against another individual related to a protected characteristic and its purpose or effect is either to violate the other individual’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for them;
- of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the other individual; and
- that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the other individual and which relates to their gender or gender re-assignment where they submit to or reject such conduct and as a result are treated unfavourably.
The Spanish Constitution guarantees:
- dignity as an inalienable right;
- the “right to life, and the physical and mental (or moral) integrity” of every person; and
- the right to privacy, honour and respect for one’s image and reputation.
Further, the Workers’ Statute provides all workers with rights with regards to their “physical integrity”, “privacy” and “due consideration for their dignity”, which includes protection against abuse based on:
- ethnic origin;
- personal convictions;
- age; and
- sexual orientation.
What is the position in relation to whistleblowing?
There is no employment-specific legislation which covers whistleblowing in Spain, although employees have some measure of protection under general employment law and data protection laws. Historically, there has been some apathy among Spanish employers when it comes to encouraging employees to report malpractice or wrongdoing at work. However, a combination of the extra-territorial effect of the US Sarbanes-Oxley laws on US multinationals with operations in Spain and amendments in July 2015 to the Spanish Criminal Code have begun to change this. The latter has created an incentive for employers to introduce internal whistleblowing procedures. However, there is still no legal obligation on them to do so.
It is not possible for employers to include a provision prohibiting employees from future whistleblowing in an employment contract – such a provision would be null and void and could not be relied on by an employer when disciplining the employee.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Under Article 20 of the Workers’ Statute, employers in Spain are free to monitor and control their employees’ use of work servers, email accounts and internet. However, such monitoring must not result in the breach of the employees’ dignity, privacy and secrecy of their communications under Article 18 of Workers’ Statute and Article 18 of the Spanish Constitution.
Employers are entitled to set limitations on employee telephone, internet and email usage on the employer’s equipment and servers. Most employers in Spain have policies covering this.
To what extent can employers regulate off-duty conduct?
Employers may seek to regulate off-duty conduct by including express provisions in the contract of employment or in policies regulating such off-duty conduct if it affects or is likely to affect the employee when he or she is doing his or her work or could otherwise adversely affect the employer.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
There are no specific rules on protecting social media passwords or on employers monitoring employee social media accounts. Many employers have social media policies in place which set out that the monitoring of social media accounts will take place.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
If employees create intellectual property during the course of their employment, the IP rights will generally belong to the employer. However, it is advisable to include express provisions to this effect in the contract of employment.
What types of restrictive covenants are recognised and enforceable?
Enforcing restrictive covenants in Spain is possible but difficult, because it goes against two key freedoms under the Spanish Constitution – the right to conduct a business and the right to work. Therefore, the Spanish courts tend to adopt a pro-employee, narrow view on their enforceability. Article 21 of the Workers’ Statute contains the main limitations on restrictive covenants. All restrictive covenants must be in writing and contained in the employment contract or in an ancillary document to the employment contract.
Are there any special rules on non-competes for particular classes of employee?
No, but in practice employers are only likely to be able to enforce a non-compete restraint against managers and those with access to confidential information and trade secrets, because it may be difficult for the employer to prove its legitimate business interest in preventing other types of employee working for a competitor.
Where a non-compete restraint clause contains a provision allowing the employer to waive the non-compete, some courts in Spain have ruled that such provisions are null and void.
During employment Under the Workers’ Statute, employees have a duty of loyalty to their employer not to engage in unfair competition. This prevents them from working for a competitor. Therefore, there is no need to have a restrictive covenant while the employment is continuing, nor any obligation to pay any compensation for this.
However, if an employer wants its employees to devote all of their time and attention to their job (ie, not be involved in non-competitive activities), it must pay them appropriate compensation which must be specified in the employment contract and itemised separately in their pay slips. As a general guide, this would be approximately 10% of the employee’s salary.
Post-employment Post-employment non-compete restraints are enforceable in Spain, but are subject to significant restrictions and also face resistance by the Spanish courts unless all of the requirements are satisfied. The requirements relate to:
- adequate compensation being paid (as a general guide, Spanish case law indicates that between 40% and 50% of the employee’s remuneration is adequate);
- the duration of the restraint; and
- the need to protect the employer’s legitimate business interests.
Employers may find it difficult to escape liability for employee renumeration merely by waiving the restriction when employment ends.
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
Only in accordance with a relevant collective bargaining agreement or for workers’ representatives and affiliated employees.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
What are the rules on trade union recognition?
All validly incorporated trade unions must be recognised by employers.
What are the rules on collective bargaining?
Under Article 82.3 of the Workers’ Statute, collective bargaining agreements (CBAs) that comply with the statutory requirements are binding on all employers and workers included within their scope and throughout the entire term that they are in effect.
There are national and sector level CBAs as well as company level ones. These are automatically applicable to all employees within the company, whether or not they are union members. Local union representatives and the company can derogate from these within the local level CBA – provided that these derogations do not contravene mandatory laws.
Under Article 63 of the Workers’ Statute, a works council is the professional representative body of all the workers in the company or work location, which is established for the defence of their interests and must be formed in every work location with 50 or more workers. This is subject to the promotion of internal elections in the company in order to appoint worker representatives. A works council makes its decisions through a majority of its members.
Companies and organisations employing between 11 and 49 employees are not required to establish a works council, but the employees may elect delegates. The number of employee delegates is based on the size of the workforce.
In companies or organisations with over 250 employees, the workforce can elect union representatives. The number of union delegates depends on the size of the workforce and the number of separate sections or divisions within the company or organisation.
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, when in either case 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 or not they actually 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:
- maternity or paternity leave;
- adoption; or
- a foster care placement;
- as a result of the employee requesting:
- permission to breastfeed; or
- 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 his or her right to:
- reduce or reorganise work;
- move his or her location of work; or
- suspend the employment contract; and
- 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 only possible in the context of an economic, technical, organisational or production-related dismissal where there is no other employee rendering similar services. Although it is theoretically possible to terminate an employee representative for ‘cause’ (eg, gross misconduct), this is often difficult in practice.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
Employment claims are normally dealt with by employment courts, which include:
- labour courts comprising one judge;
- the Labour Division of the High Court of Justice comprising the president and several judges;
- the Labour Section of the National High Court of Justice comprising the president and several judges;
- the Labour Section of the Supreme Court comprising the president and several judges; and
- the Constitutional Court comprising 12 judges.
What is the procedure and typical timescale?
In relation to employment-related complaints, several procedures apply depending on the nature of the issue. Generally, Spanish law imposes an obligation to attempt conciliation before a conciliation administrative body before filing any claim in the labour courts. However, there are special proceedings in which conciliation is not mandatory (eg, social security claims, collective dismissals and substantial changes in working conditions).
Employees do not have to pay a fee to submit a claim.
Claims involving dismissal procedures generally take three to six months to go through the courts. Other claims, such as salary claims, usually take 12 to 14 months.
There are special procedures where claims can be fast-tracked and where conciliation is usually not mandatory.
What is the route for appeals?
Although in general terms it is possible to challenge and appeal a first instance decision, some exceptions exist. In practice, appealing a court decision can take eight to 12 months.