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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.

Misclassification

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).

Contracts

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;
  • shifts;
  • salary, including:
  • amount;
  • 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.

Foreign workers

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.

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