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an alliance of employers’ counsel worldwide
employment law overview
spain 2021-2022
Suárez de Vivero / Proud Member of L&E GLOBAL
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 1
www.leglobal.org
table of contents.
I. General overview 03
II. HIRING PRACTICES 05
III. employment contracts 07
IV. working conditions 08
V. Anti-Discrimination Laws 10
VI. PAY EQUITY LAWS 12
VII. SOCIAL MEDIA AND DATA PRIVACY 14
VIII. Termination of Employment contracts 16
IX. Restrictive Covenants 22
X. TRANSFER OF UNDERTAKINGS 24
XI. TRADE UNIONS AND EMPLOYERS ASSOCIATIONS 25
XII. EMPLOYEE BENEFITS 29
employment law overview
an alliance of employers’
employers’ counsel
counsel worldwide
worldwide 2021-2022 / spain | 2
i. general overview
1. Introduction
As is the case in other European countries, Spanish labour law is very comprehensive and provides significant
protection for employees. The labour law regulates individual and collective relationships between employees
and employers, the scope of which extends to other related areas such as social security, health and safety at
work, special employment relationships and procedural law.
2. Key Points • The Spanish Constitution dated 17 December
1978.
• Royal Decree 2/2015 (the Workers’ Statute).
• Non-EU citizens must obtain a work permit.
• Royal Decree-Law 3/2012 of 10 February on
• In principle, employment contracts are presumed
urgent measures to reform the labour market.
to be for an indefinite term. However, the number
• Law 3/2012 of 6 July 2012 on urgent measures to
of fixed-term employment contracts are subject
reform the labour market.
to some limitations.
• Royal Decree-Law 16/2013 on measures to
• Minimum working conditions are largely set out
improve hiring.
in the Workers’ Statute and applicable collective
• Law 5/2000 on Labour Infractions and Sanctions.
agreements.
• Law 31/1995 on Work Risk Prevention.
• Employment contracts are automatically
• Law 3/2007 on Equality between Men and
transferred with the business to the new
Women.
employer. Employees’ rights and obligations are
• Royal Decree 8/2015 on Social Security.
also transferred.
• Collective Bargaining Agreements, applicable to
• Termination can be based on objective grounds.
both the company and its workers.
• Dismissals are void if the termination is
• Employment contracts.
discriminatory or involves protected employees.
• Habits and common usage.
• General Principles of Law.
3. Legal Framework
The economic crisis of 2008 revealed the
4. New Developments
unsustainability of the Spanish labour model. The
The most important new legislation from 2018 to
labour legislation was updated in 2012 to adequate
2020 includes the following:
itself in a time of crisis within the labour market.
Royal Decree-Law 3/2012 of 10 February, on urgent
• The Spanish Data Protection Act 2018 (Organic
measures to reform the labour market, significantly
Law for the Protection of Personal Data and
modified the institutional framework of Spanish
Guarantee of Digital Rights) came into force on 5
labour relations.
December 2018. This regulation adapts Spanish
law to the model established by the EU General
The main sources of Spanish employment law
Data Protection Regulation (‘GDPR’).
include:
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 3• Royal Decree-Law 17/2019 of 25 January
introduces a new article (Article 70 bis) in
the General Regulation on the quotes and
liquidation of social security rights, to establish
the responsibility of the different administrations
and public entities.
• Royal Decree-Law 20/2018 of 7 December on
urgent measures for economic competitiveness
in the sector of industry and trade in Spain,
allows the manufacturing industry to apply
the regulation of partial retirement under the
fulfilment of certain requirements.
• Royal Decree-Law 6/2019 of 1 March, on urgent
measures to guarantee equal treatment and
opportunities for men and women in employment
and occupation.
• Royal Decree-Law 8/2019 of 8 March, on urgent
social protection measures and against precarious
work during the working day.
• Royal Decree-Law 4/2020 of 18 February,
derogates the objective dismissal due to non-
attendance at work as established in article 52. d)
of the consolidated text of the Workers’ Statute.
• Royal Decree-Law 28/2020 of 22 September on
remote working.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 4iI. HIRING PRACTICES
1. Requirement for Second, in contrast to the first option and only when
certain requisites are met, the foreign company may
Foreign Employees to have a legal representative in Spain (representation
office). The legal representative in Spain must be a
Work Spanish resident (individual or company) and it will
be responsible for ensuring compliance with taxes,
Foreign employees from outside the European and the social contribution system payments of the
community, including self-employed individuals, foreign company in Spain, as these cannot be carried
must obtain an administrative authorisation, or out directly by the foreign legal entity. The legal
work permit, to work in Spain. The work permit representative will usually take care of the payroll
may be requested at the Immigration Bureau. and the tax payment of the employees. In order to
have a legal representative, the foreign employer
will need to give a power of attorney appointing
2. Does a Foreign someone as its legal representative, residing in
Employer need to Spain. This POA must be validated by a public notary
or by the Spanish consulate in the foreign country,
Establish or Work stating that the company is validly constituted in
accordance with its applicable law, translated into
through a Local Entity Spanish by a sworn translator and with the Hague
to Hire an Employee? Apostille. Additionally, the obtainment of a Digital
Certification will be compulsory.
When a foreign employer wants to hire a local
employee in Spain, it must take charge of all the 3. Limitations on
obligations related to the employee, such as the
social security contributions and the income taxes. Background Checks
There are essentially two ways that a foreign
company can hire employees in Spain. First, there is Information regarding criminal records is
a possibility of setting up a company (subsidiary or confidential and public disclosure is prohibited
branch) in Spain and hiring employees through it. as it could violate data protection regulations.
The set-up process consists of establishing a fixed Moreover, there is a general prohibition forbidding
base of business in Spain, to develop an activity, discrimination against any employee, for any
and grant a Public Deed before the Public Notary. reason, either before or after being hired. This is
Tax laws require a legal representative resident in specifically provided for in article 14 of the Spanish
Spain, as well as a Digital Certification, in order to Constitution, article 4.2 of the Workers’ Statute
work with the Spanish Tax Agency. The company in and article 73.2 of the General Penitentiary Law. In
Spain will have several other obligations related to addition, access to the Central Registry of Convicts
the following services: will only be allowed for certain state agencies,
judges and courts, as well as the judicial police,
• accountancy; when there is such a requirement. Therefore,
• corporate income tax; the employer cannot obtain such data unless the
• books of commerce and minutes; candidates or the employees provide the data
• annual accounts; voluntarily. The courts have understood that the
• payment of social contributions. request for and use of this information are contrary
to the legal provisions, considering that these
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 5practices represent a restriction on the access to the that has not been regulated in Spain and therefore
labour market. This is so, because in most cases the a candidate participating in a job interview could
information provided is related to past events that find himself in a “vulnerable” position of which the
are entirely unrelated to the job being offered, so employer could take advantage of.
the company’s request could be disproportionate
for the intended purpose. Consequently, for However, in principle, it is indeed legitimate for
Spanish Courts, the request for background checks the employer to use such information as long as
during the selection process and the exclusion of it is public, unrestricted and available to anyone.
a candidate due to the information obtained from There are no general guidelines that can be used
them, could be discriminatory. to guarantee that the fundamental rights of
the candidate will in no way be breached when
As an exception to the general prohibition extracting information from social networks.
mentioned above, there are certain sectors
whereby there exists a legal obligation that The employer is allowed to ask any question
entitles the employer to request and proceed necessary, provided that it is reasonable and
with background checks. Among these sectors, objective, and pertains to the job being offered.
we find the Public Administration, the state/local For example, requests for a candidate’s minimum
police, the army, managing members of financial height and age could be necessary and objective
institutions, insurance agents, professionals who for a flight attendant position.
work with minors and casinos.
4. Restrictions on
Application/Interview
Questions
By a series of strict regulations and case law on the
prohibition of any type of discrimination as well
as a prohibition, as a general rule, on requesting
candidates to submit personal data that is not
directly related to the needs of the job they are
opting for. Especially in the selection process, the
general position prohibits requests for personal
information such as racial or ethnic origin, sexual
orientation, health information, religious beliefs,
persuasions or political views. Personal information
along such lines of inquiry can only be requested
when the need to know of such convictions is
objectively and reasonably related to the nature of
the job. Moreover, such personal data may only be
collected when appropriate, in a relevant and non-
excessive manner, and only as it relates in scope
to the specific, explicit and legitimate purposes for
which the information was obtained.
Another question is whether there is a legitimate
need that would allow for an employer or HR
representative to investigate a candidate’s profile
on social networks, in order to discover additional
information about the candidate. This is a matter
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 6iII. EMPLOYMENT
CONTRACTS
1. Minimum 2. Fixed-term/Open-
Requirements ended Contracts
Generally, Spanish Labour Legislation allows In principle, employment contracts are presumed
for freedom of form when making a contract. to be for an indefinite term. There are, however,
Employment contracts can be verbal or in writing. a limited number of definite-term employment
However, during the term of a verbal contract, agreements. If the employee continues to work
either of the parties may require that the verbal past the original term of the temporary agreement,
contract be reduced to writing. As an exception to the relationship becomes indefinite in time and
the freedom of form, certain employment contracts the employee becomes entitled to the standard
must be in writing, including, but not limited severance upon termination.
to, temporary employment contracts, contracts
involving special labour relations (such as those
concerning lawyers, top managers or commercial 3. Trial Period
representatives) and part-time contracts.
In the event that no special provision is contained
Notwithstanding the general freedom of form in an applicable collective bargaining agreement,
principle, when an employment contract’s duration notice periods cannot exceed six months for
period is greater than four weeks, the employer, workers with an academic degree and for any
within two months from the commencement of other employees. However, the contract for
the employment relationship, must provide the entrepreneurs has established a trial period of one
employee with the following information in writing: year.
• identification of the parties to the employment;
• date of commencement and estimation of the
4. Notice Period
employment duration for temporary contracts;
Spanish Labour Law requires that a party seeking
• place where services are going to be rendered;
to terminate an employment agreement provide
• professional group or category;
the other party to the agreement with a minimum
• base salary as well as other compensation or
of fifteen (15) days’ notice prior to termination.
benefits, if any;
This rule does not apply to interim contracts. The
• total working hours;
parties to the contract may agree upon longer
• total number of holidays;
notice periods.
• notice periods;
• applicable collective agreement.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 7IV. WORKING
CONDITIONS
1. Minimum Working 4. Overtime
Conditions As a general rule, overtime hours are of voluntary
acceptance by employees, with exceptions
Employers and employees are free to negotiate made for specific individuals and an applicable
the terms and conditions of their employment collective agreement. Structural overtime hours
relationship. However, employees have various will be obligatory as they are meant to substitute
minimum rights under the law, regardless of any unexpected leaves and meet higher production
contrary language in their employment agreement. periods. Overtime hours can be compensated
These minimum working conditions are set forth in economically or with time for rest. If there is no
the Workers’ Statute and the applicable collective agreement in this regard, it will be understood that
agreement, among others. the overtime hours must be compensated with
resting time within the following four (4) months.
2. Salary According to statutory law, overtime cannot exceed
eighty (80) hours per year. Those who have been
compensated with periods of rest within the four
An employee’s salary includes all amounts received
(4) months following its completion will not be
by an employee in compensation for services
computed for this purpose. In addition, there is
rendered. Salary can be monetary or in kind, but
a form of overtime that is considered as force
the latter cannot be higher than 30% of the total
majeure, wherein overtime is required due to
amount received by the employee.
the need to prevent or repair accidents, or other
extraordinary and urgent damages. This type of
3. Maximum Working overtime is mandatory for the employees and will
not be taken into account for the annual maximum
Week limit.
The maximum working week is forty (40) hours
calculated as an average over a yearly period. 5. Health and Safety in
A collective agreement, or failing that, an
agreement between the employer and employee
the Workplace
representatives, may establish the irregular
The employer is guarantor of the health and
distribution of working time throughout the
safety in the workplace and, as such, it will need
year. In the absence of agreement, the company
to take all necessary steps in order to protect its
may distribute unevenly throughout the year,
employees. The employer shall take the necessary
10 percent of the workday. This distribution shall
measures to ensure that the use of the workplace
always respect the minimum daily and weekly rest
does not create risks to the health and safety of its
periods.
employees or, if this is not possible, so that these
risks are minimised.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 8a. Employer’s Obligation to Statutory law does not enforce a specific procedure
to be followed, however. Besides internal
Provide a Healthy and Safe complaints before the company, employees are
Workplace entitled to report any violation of the law before
the Labour Inspectorate, which is an administrative
The prevention of labour risks should be integrated body meant to guarantee employment rights.
in the general management of the company, All actions and claims carried out by employees
through the implementation and application of a in defence of their rights are protected from any
plan for the prevention of labour risks. The essential form of retaliation. Therefore, any claim registered
instruments for the management and application internally, or externally before third parties,
of the risk prevention plan include the evaluation will effectively serve to protect employees from
of labour risks and the planning of the preventive retaliation.
activity.
c. Protection from Retaliation
The process of assessing labour risks is aimed at
estimating the enormity of the risks by obtaining The protection from retaliation is the right of every
the necessary information, so that the employer employee to not be punished for raising complaints
is able make an appropriate decision regarding of discrimination or harassment, for participating
the need to take preventive measures, including in legal proceedings or internal investigations,
decisions regarding the types of measures that or for having exercised any type of labour rights
should be adopted. The evaluation should serve that affect them personally or affect a third-party.
to identify dangerous elements, the employees Retaliation can include any negative job action,
who could be exposed to such elements, and the such as demotion, discipline, dismissal or salary
magnitude of the risks. When the result of such an reduction. The consequence of any action taken
assessment reveals situations of risk, the employer by the company with the intention of a reprisal will
will then plan the appropriate preventive activity make it null and void.
in order to eliminate, control and/or reduce those
risks. The protection from retaliation is framed in Article
4. 2 g) of the Workers’ Statute, which declares
A company’s Health and Safety Committee is an that workers have the right to exercise any actions
internal body tasked with consulting on a regularly deriving from their work contract, as similarly
basis the company’s actions in the field of risk defined in Article 24.1 of the Spanish Constitution,
prevention. It will be constituted in all companies which establishes that “every person has the right
or work centres that have 50 or more employees. to obtain the effective protection of the judges and
The Committee will participate in the preparation, the courts in the exercise of his or her legitimate
implementation and evaluation of risk prevention rights and interests, and in no case may he go
plans and programs in the company, as well as undefended”. Case law has been modelling and
promote initiatives on preventive methods and constituting the case-by-case assumptions in
procedures. In any case, employers must meet the which a worker is protected. However, not every
minimum request established by law regarding claim will grant the employee a valid protection.
their constructive conditions, order, cleanliness Reckless or baseless claims with the sole purpose
and maintenance, signposting, service installations of searching for a specific type of protection will
or protection, environmental conditions, lighting, not be effective. There is a proper legal procedure
sanitary and local respite services, equipment and to claim a violation of retaliation in protection of
first aid accommodations. fundamental rights and public liberties.
b. Complaint Procedures
In addition to whistleblower regulations,
employees can file complaints, either during or
after employment. Some companies offer internal
codes of conduct with procedures in this regard.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 9V. ANTI-DISCRIMINATION
LAWS
1. Brief Description of 3. Protections Against
Anti-Discrimination Harassment
Laws Employees are entitled to protection and respect
of their privacy and due consideration for their
Employees are entitled not to be discriminated dignity, including protection against harassment
directly or indirectly during their employment for on the reason of racial or ethnic origin, religion
reasons of sex, marital status, age within the limits or belief, disability, age or sexual orientation and
establish by the law, racial or ethnic origin, social against sexual harassment and gender based
status, religion or belief, political ideas, sexual harassment. Harassment for reasons of racial or
orientation, affiliation with a union (or not), or ethnic origin, religion or belief, disability, age or
for reason of language, inside the Spanish State. sexual orientation employer or people working in
Employees may not be discriminated against for the company is considered a breach of contract.
reason of disability, provided that, they are fit to The employer could face a constructive claim
perform the job in question. for dismissal via article 50, which basically would
entitle the employee to the same amount as an
2. Extent of Protection unfair dismissal, if the employee brings to court
serious evidence of the harassment activities by the
employer. This claim can be complemented with an
Any direct or indirect discrimination included
action for moral damages against the company.
in regulatory provisions, clauses in collective
agreements, individual agreements, and unilateral
decisions by employers shall be deemed null and 4. Employer’s
void and could be subject to a complementary claim
for damages. Among other causes of discrimination, Obligation to
are those for reason of age or disability handicap
and in regarding remuneration, working hours Provide Reasonable
and other working conditions for reasons of sex,
origin, including racial or ethnic origin, marital
Accommodations
status, social status, religion or beliefs, political
Spanish Labour Legislation requires the adoption of
ideas, sexual orientation, membership (or not) of
internal rules in companies or centres that promote
unions and their agreements, kinship links with
and stimulate the elimination of disadvantages or
other workers in the company and language in
general situations of discrimination against persons
Spain. The decisions of the employer that involve
with disabilities, including reasonable adjustments.
unfavourable treatment of employees as a reaction
to a complaint or to any legal proceedings aimed
Employers are required to take appropriate
at enforcing compliance with the principle of equal
measures for adapting the workplace and
treatment and non-discrimination, would also be
accessibility of the company, depending on the
null and void.
needs of each specific situation, in order to enable
people with disabilities access to employment,
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 10job progress and access to training, unless such
measures would impose a disproportionate burden
on the employer. To determine whether a charge is
excessive, the court will consider whether, if taken,
it is sufficiently remedied by measures, public
grants or subsidies for people with disabilities.
Spanish regulations oblige companies with more
than 50 employees to reserve a quota of 2% of
their staff for disabled people.
5. Remedies
If an employee considers that the employment
relationship has been extinguished by any
discriminatory reason, he/she is entitled to judicially
demand the protection of his or her labour rights.
When the employer’s decision to terminate
a contract includes some of the causes of
discrimination prohibited by the Constitution or
the law, or has occurred in violation of fundamental
rights and public freedoms of workers, the
termination decision will be deemed null and void,
and the employee will be entitled to reinstatement
and – whenever proven – to moral damages as well.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 11VI. PAY EQUITY LAWS
1. Extent of Protection the specific equality objectives to be reached,
the strategies and practices to be adopted to
attain them, and the establishment of effective
Three key measures offer protection:
monitoring and assessment systems.
• Organic Act 3/2007 of 22 March, for the effective
equality between women and men; 2. Remedies
• Royal Decree-Law 6/2019 of 1 March, on urgent
measures to guarantee equal treatment and Employees can change equal pay practices
opportunities between women and men in through their participation in the application and
employment and occupation; and elaboration of equality plans. The application
• Directive 2006/54/EC of the European Parliament and elaboration of equality plans is compulsory
and of the Council of 5 July 2006, on the application for companies with over 250 employees, when
of the principle of equal opportunities and equal mandated in the collective bargaining agreement
treatment for men and women in matters of and when the labour authorities agree to substitute
employment and occupation. the formulation and implementation of such a plan
for accessory penalties, resulting from penalty
The Organic Act 3/2007 establishes the principle proceedings. Royal Decree-Law 6/2019 modifies
of equal treatment and opportunities for men the Organic Act and requires companies with 50 or
and women. The central, regional and local more workers to draft equality plans and mandates
governments will actively mainstream this principle that such plans shall be registered accordingly.
in the adoption and implementation of their Application of this obligation shall be gradual and
legislative provisions. Moreover, from time to time, systematic. Enterprises must have an equality plan
the State Government will approve a Strategic Plan in place as of:
for Equal Opportunities covering all areas of its
competence, which will include measures to attain • 7 March 2020 for companies with more than 150
the objective of equality between women and men to 250 workers;
and eliminate discrimination on the grounds of • 7 March 2021 for companies with more than 100
gender. Additionally, article 11 of the Organic Act to 150 workers; and
regulates affirmative actions, stating that in order • 7 March 2022 for companies with 50 to 100
to ensure the effectiveness of the constitutional workers.
right to equality, public authorities will adopt
specific measures favouring women to correct If an employee believes that the company did not
situations of obvious inequality with respect to adhere to an equal pay practice, he is entitled to
men. Such measures, which will be applicable initiate an internal demand (within the company)
while the situation exists, must be reasonable and for the protection of his labour rights. However, if
proportional to the objective pursued in each case. the company does not have an internal procedure
Furthermore, equality plans are regulated under for this type of claim, a demand can be filed with the
Chapter III of the Organic Act. These regulations courts or the relevant labour inspection authority
establish that corporate equality plans comprise a in order to guarantee the equal pay provisions.
set of measures adopted after a diagnosis of the
situation and shall be designed to attain equal
treatment and opportunities for women and men
within said company. Equality plans will stipulate
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 123. Enforcement/ strictly related to their performance and the
working conditions in which those activities are
Litigation carried out are in fact equivalent.”
Examples of remuneration discrimination can Royal Decree-Law 6/2019 adds a second and a
be found in case law related to the existence of third paragraph to article 28. The second paragraph
a double salary scale. Specifically, the Supreme establishes the obligation of the employer to
Court’s ruling of 5 March 2019, held that the maintain a Salary Record. This record must be
company’s salary structure comprised an unlawful carried out regardless of the number of workers and
double pay scale based on a personal complement it must include the average values of salaries, salary
of seniority, which led to a policy to establish supplements and extra-salary perceptions, such
wage differences between workers as a result of values being separate by gender and distributed
their entry date into the company, exclusively. by professional groups, professional categories and
Likewise, the discrimination in remuneration is also equal job posts or job posts of equal value. The
manifested in the classification and professional purpose of this record is to obtain a global vision of
promotion of employees. For example, there the remuneration received by workers, according
was a case involving temporary female workers to their gender and for performing work of “equal
who were assigned a lower professional category value”. Such records will be available to employees
upon agreement of a fixed-term contract, than who have the right of access through their legal
the professional category that was assigned to representatives.
temporary male workers. However, the leading
case law relating to discrimination is the judgment Furthermore, the new third paragraph of article
rendered on 1 July 1991, involving discrimination 28 provides that, in companies with at least 50
in remuneration established in the CBA between workers, when the average of the remuneration of
the professional category of labourer (mostly men) one gender is higher than the other by 25% or more
and the professional category of cleaners (mostly considering the total payroll or the average of the
women), when both professional categories carried paid perceptions, the employer has the obligation
out manual work of equal value at the Gregorio to include in the aforementioned salary record, a
Marañón Hospital. justification to prove that the difference does not
correspond to reasons related to the gender of the
workers. In this sense, Royal Decree-Law 6/2019
4. Other Requirements further added a new section 3 to article 9, which
provides that, in the event of invalidity due to wage
International law, European Union law and Spanish discrimination on grounds of gender, the worker will
national law, have recognised and protected the have the right to the remuneration corresponding
right of women and men to receive equal pay for to equal work or work of equal value.
work of equal value. At the national level, the Royal
Decree-Law 6/2019 of 1 March, introduced several
modifications in the Workers’ Statute, specifically in
relation to the term ‘work of equal value’ mentioned
in article 28 of said law. Prior to its modification,
it only established that the employer was obliged
to pay the same remuneration for the provision of
work of equal value. After the modification made by
the Royal Decree-Law 6/2019, a second paragraph
was introduced specifying what is understood as
‘work of equal value’ –
“A work will have the same value as another
when the nature of the functions or tasks actually
entrusted, the educational, professional or training
conditions required for their exercise, the factors
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 13VII. SOCIAL MEDIA
AND DATA PRIVACY
1. Restrictions in prohibition can be regulated by the employer by
written form, with a detailed policy on surveillance
the Workplace and control of the company’s property and the
use of social media tools during working hours.
In Spain, the new culture resulting from the Although there is no need to seek approval with
development, implementation and use of new the employees’ representatives to implement or
possibilities such as social media and other negotiate such policies, some companies choose
technologies enabling mass dissemination of to negotiate directly with these representative
information, is changing the way people relate to bodies, before communicating such policies to the
each other in all fields. The working environment individual employees.
is no exception. Massive amounts of personal
information are available to anyone wishing to use Therefore, if the employer considers the particular
it, and companies are obviously not indifferent to use of multimedia contents by its employees
this valuable source of content, nor can they escape detrimental to the company’s activities, the
from this fast and ever-changing technological employer may within its responsibilities, issue the
innovation that allows people to communicate appropriate guidelines and instructions to regulate
and share extremely detailed data at a much faster the use of these tools and seek greater productive
rate. The vast majority of regulations applicable to capacity from the employees, and even prohibit
the multimedia content in Spain are driven by the the use of social media at the workplace.
European Union Council and European Parliament.
This European legislation is complimented by the Thus, the measures used by the employer will be
Courts of Social Justice Case law. These elements assessed according to the principle of proportionality
have provided a set of principles and guidelines meaning the measures to control the employee at
making analogies between on-line and off-line the workplace have to be justified, appropriate,
worlds. Still, the widespread use of social media and necessary and balanced. According to a general
the speed at which it evolves, has clearly overtaken formulation, the principle of proportionality may
any attempt to keep pace using the legal resources be applied to conflicts between fundamental
currently available to private users and companies rights. This is based on three types of test: first, if
in most countries, and this is particularly true in the application of the measure is able to achieve
Spain. the objective (judgment of suitability); second, if it
is necessary and there is no other measure which is
In spite of the need, Spain still lacks specific less aggressive (judgment of strict necessity); third,
regulation on the subject of using social media if it is balanced and obtains more advantages than
in the employment context. Due to lack of well- disadvantages for the general interest (judgment of
defined regulatory legislation, it has been up to strict proportionality).
the courts to solve conflicts between employer and
employees regarding their rights and duties for use a. Can the employer monitor,
of social media in connection with employment.
access, review the employee’s
There is no express legal prohibition for employee electronic communications?
not to use social media at the workplace. Such a
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 14Article 20.3 of the Workers’ Statute recognises such a policy, that it may be used for disciplinary
the employer’s right to take the most appropriate reasons against the employee. The company will
measures to control the work of their employees, be entitled to enforce the policy and sanction the
so as long as they do not violate their fundamental employee whenever breached.
rights.
It is advisable to provide such a policy to the
Case law of the European Court of Human Rights employees at the beginning of their employment
and Spanish Courts have established that when relationship; firstly, by defining how social media
the electronic communication systems used may or may not be used for private use during
by employees are owned by the company, and working hours; secondly, identifying what non-
therefore susceptible to being considered as work confidential company information can or cannot
instruments and tools, they may be subject to the be posted by employees on social media sites, if
employer’s control. However, for the monitoring any. This can be included in the employee’s work
of the electronic communications to be valid, the contract.
employer must comply with the following:
• establish guidelines on the use of these media,
and inform the employees that the use of such
devices is limited to professional tasks; and
• warn or notify employees, in advance, of the
possibility to control and monitor their electronic
devices and the possibility to penalise them for
improper use.
2. Employee’s Use
of Social Media
to Disparage the
Employer or Divulge
Confidential
Information
Without clear policies, it can be difficult to lawfully
sanction employees for misuse of social media. The
High Court of Justice of Madrid accepted offensive
statements posted on Facebook by an employee
as evidence towards the appropriateness of the
employer’s disciplinary action. The High Court found
the dismissal of the employee to be fair, because
of the company’s code of conduct, which explicitly
permitted disciplinary measures for offensive or
defamatory remarks made by employees against
the company.
It is important to have a social media policy
implemented by the employer and communicated
to the employees, in order to control the use of
company resources and tools. Also, some courts
in first instance consider it necessary to include in
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 15VIII. TERMINATION OF
EMPLOYMENT CONTRACTS
1. Grounds for a. Reasons for objective
dismissal
Termination
• worker’s incompetence;
In Spain, the following are grounds for termination: • worker’s inability to adapt to technical change;
• layoffs based on economic, technical,
• mutual consent of the parties; organisational and or productivity grounds.
• grounds established in the contract;
• expiration of the contract term or end of the Given that labour courts are so restrictive in
specific job; accepting dismissals based on business grounds,
• employee’s resignation; this procedure is seldom used, unless the grounds
• employee’s death or permanent illness; are absolutely clear (e.g., bankruptcy).
• retirement of the employee;
• employer’s death, retirement or permanent
illness; b. Reasons for disciplinary
• force majeure that makes it impossible to dismissal
continue rendering services;
• collective dismissal based on objective grounds; • repeated and unjustified tardiness or lack of
• employee’s voluntary departure based on breach attendance at work;
of contract by employer; • lack of discipline or insubordination;
• disciplinary dismissal of the employee. • verbal or physical offence towards the employer,
other people working in the company or residing
2. Collective Dismissals family;
• contravention of contractual good faith and
misuse of trust;
Terminations based on economic, technical, • continuous and voluntary decrease of the
organisational or productivity grounds are deemed worker’s normal or agreed performance;
collective when: ten (10) workers are affected • intoxication due to alcohol or drugs, when causing
in companies with less than one hundred (100) a negative effect in work;
workers; at least 10% of the employees are affected • harassment based on: race, religion, birth,
within a period of ninety (90) days in companies gender, age, disability, opinion, social condition
that have between one hundred (100) and three and sexual orientation.
hundred (300) workers; thirty (30) workers in
companies with three hundred (300) or more
workers. c. Is severance pay required?
A disciplinary dismissal is one wherein the cause
3. Individual Dismissals is based on the employee’s behaviour, which
constitutes a punishable offense. Disciplinary
Termination can be based on objective grounds or dismissals must be communicated by a written
disciplinary grounds. letter to the worker, stating clearly and sufficiently
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 16the facts that motivate it and the date on which the the ones described above will be subject to tax and
dismissal will take effect. A disciplinary dismissal social security contributions (in case of mutually
does not entitle an employee to receive any agreed terminations), in the amounts described
compensation from the company. A severance below.
payment will only be required in cases that involve
a court ruling declaring the dismissal unfair. f. Calculation formula and
basis for calculation
d. Severance pay resulting
from objective dismissal Severance compensation is calculated under two
criteria: seniority and daily salary. In case of objective
The severance pay resulting from an objective or unfair disciplinary dismissal the severance will
dismissal is a tax-free payment in the amount of be calculated by multiplying the seniority by the
twenty (20) days’ salary per year of service, up daily salary and the days (20 in case of objective
to twelve (12) months’ salary. If the dismissal is dismissal/ 33 in case of unfair dismissal). The daily
not correctly proven in court, the employee will salary is calculated taking into consideration the
be entitled to the severance explained below for twelve (12) last payments, and the company shall
unfair dismissals. include all salary concepts. This also includes salary
in kind and extra-hours. Only extra-salary concepts
e. Severance pay resulting should be excluded. Therefore, bonus, incentives
and irregular payments are included.
from disciplinary dismissal
Stock Options will be calculated for the severance
If the dismissal is proven in court the employee is under certain circumstances: in case of voluntary
entitled to no severance. However, if the dismissal leave or disciplinary dismissal declared fair,
in deemed unfair by the judge or acknowledged the employee will lose the right to include the
as unfair by the company before the Conciliation stock options in the severance for dismissal. The
Chamber or the Court, the relevant tax-free Supreme Court has said that in the event the
severance is thirty-three (33) days’ salary per dismissal was declared unfair and was carried out
year of service, up to twenty-four (24) months’ a few months before options could be exercised,
pay. However, this calculation must respect the they will be included in the severance for dismissal.
following: The same will occur in the event of death, disability
and retirement, in which the employee or his/her
• for the period of seniority rendered before heirs will be able to claim these. In case of unfair
12 February 2012 (the day the labour reform dismissal, the employee will be entitled to exercise
was approved) the employee is entitled to the the right to stock options after the contract is
indemnity arising from a calculation based on 45 terminated even if a “permanence clause” has
days per year of work, with a cap of 42 months. been signed.
• for the period of seniority as from 13 February
2012 until termination date, the employee will be
entitled to compensation based on 33 days per 4. Separation
year of work, with a cap of 24 months. The sum
of both amounts will be the legally established Agreements
compensation for the employee.
Termination of contracts based on mutual
The maximum cap is now 720 days. However, consent does not entitle the employee to
when the calculation to determine the severance severance payments (unless specifically agreed) or
for dismissal before 12 February 2012 results in a unemployment benefits.
number of days greater than 720, the cap will then
be 42 months. a. Is a Separation Agreement
The parties may agree to a lower or higher
required or considered best
compensation. Higher compensations that exceed practice?
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 17Should a severance be agreed, it would be subject agree to mutually terminate the contract, income
to taxes and social security contributions. To avoid tax payments and social contributions will be due
the aforementioned, the general practice for by the employee in the event that the contract
companies is to dismiss the employee so that he/ is terminated by mutual consent not only for the
she is entitled to the legal severance and also to amount that exceeds that of an unfair dismissal,
unemployment benefits. Although this system is but for the whole severance paid.
used in a clear majority of cases by employers, a
termination agreed by mutual consent that has the The company will have to take the whole severance
appearance of a dismissal (by giving a dismissal compensation and apply to it the employee’s
letter to the employee in order to receive the existing tax % in his ordinary payroll. Likewise, it will
severance free of taxes as well as unemployment also contribute to the social security as explained
benefits), is unlawful and considered fraudulent. above.
b. What are the standard If a mutually agreed termination (with no severance
payment) is not correctly addressed, for example
provisions of a Separation by not having a detailed termination agreement,
Agreement? with inclusion of a waiver clause, the employee
may challenge the termination by filing a dismissal
A mutually-agreed termination will only require a claim against the employer. In this case, if the
simple agreement by both parties that puts an end employee proves that the termination was really a
to the employment relationship. In said agreement, dismissal and not a mutually agreed termination,
we recommend the parties include certain the employer may be liable to pay the maximum
background information that briefly explains the severance explained for unfair dismissals. These
grounds for termination, the agreed compensation amounts would then be free of taxes and the
and the means and timing of payment, a specific employee would be entitled to unemployment
mention to gross and net amounts, and several benefits.
other clauses such as confidentiality, non-
disparagement, waiver against future actions and
possibly a non-compete, whenever appropriate. 5. Remedies for
Employee Seeking to
c. Does the age of the
employee make a difference?
Challenge Wrongful
Termination
A mutual agreement may be reached between
parties independent of the employee’s age. That An employee is entitled to appeal against any such
said, we need to be careful of those separation dismissal. However, prior to filing a claim with the
agreements with employees near retirement courts, the parties are required to try to reach an
age, that are dressed as “dismissal letters”, as agreement before the Mediation, Arbitration and
they could be subject to inspection by the state Conciliation Service. When the employee files a
who will be in charge of paying said employees claim before the court, the court will render one of
their unemployment benefits and subsequent the following judgments:
retirement pension.
Fair Dismissal – in which case, the employer will not
d. Are there additional be subject to any penalties or further obligations
towards the employee.
provisions to consider?
Unfair Dismissal – if the employee is successful in
In principle, the employee that signs a separation his claim, the principal remedies available are:
agreement is not entitled to additional benefits
beyond agreed severance payment, the final • reinstatement, with financial award to cover lost
payments, and any other amounts, agreed upon. remuneration; or
If no dismissal letter is given and both parties
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 18• an award of 33 days salary per year of service,
subject to a maximum of 24 months’ salary.
6. Whistleblower Laws
There is no specific employment legislation in place
The choice of remedy, whether to make severance
that provides legal protection for whistleblowers.
payments or to reinstate, is the decision of
However, internal company policies usually provide
the employer. However, in cases involving the
for protection as well regulate specific procedures
termination of an employees’ representative, the
to report illegal practices. Internal policies must
representative is the one who will enjoy the choice
be implemented in accordance with what is
of remedy.
established within the law and regulations. The
most recent reform of the Criminal Code, which
Null and Void Dismissal – a court will declare
came into force on 1 July 2015, introduced the
the dismissal null and void (and will award
need to have internal prevention mechanisms
reinstatement, with financial award to cover lost
and channels in order to reduce or avoid any
remuneration) where a fundamental right of the
potential criminal liability for companies or their
employee has been breached during the course of
representatives. Whistleblower programs have also
the dismissal procedure, for example:
been regulated by the Data Protection Authority’s
(‘DPA’) guidelines, in particular by the “Guide for
• where the dismissal involves an element of
Data Protection in Labour Relationships”. Usually,
discrimination prohibited by the Spanish
protection in an internal policy will be limited to
Constitution or statute, or which otherwise
the company’s employees, which have a direct
violates the employee’s fundamental rights;
hierarchical relation with the company.
• where the employer should have used the
collective procedure;
Outsourcing services, agency workers or
• where the employer has dismissed any of the
independent contractors do not fall under the
protected categories of employees and has not
organisational scope of the employer, but this does
justified the dismissal correctly.
not mean that they cannot be protected in case any
breach needs to be violated. The reporting system
If the worker is an employees’ legal representative
must rely on wrongdoings, which could affect the
or a trade union representative, there will be formal
contractual relationship between the companies
adversarial procedures, during which the worker
and the incriminated employee. There are some
and other members of the union to which he or she
companies that have created “ethical mailboxes”
belongs, may be heard. If the worker is a member
where an employee can report alleged breaches
of a trade union and the employer is aware of this
of the company’s internal code of conduct. The
fact, representatives of the corresponding trade
company will need to ensure that its employees
union must be heard in advance. Lastly, in the event
are well-informed about this system, how it
of collective dismissal, the workers’ representatives
works and most importantly, how their privacy
have priority for remaining in the enterprise.
and confidentiality concerning the information in
the complaint will be guaranteed. The reporting
There is no absolute protection against dismissal in
system is created to uncover wrongdoings by
cases of pregnancy, suspension of the contract due
other employees or company officials, which
to maternity leave, risk during pregnancy or breast-
could be considered a breach of their contractual
feeding leave; adoption or fostering; family leave
relationship.
to care for children or handicapped persons; and
certain circumstances where female workers have
The main principle, however, is that confidential
been victims of gender violence.
information is only available to those people who
are essential to the investigation of the complaint.
Dismissal in such cases will be allowed if not
The whistleblower’s identity will only be revealed
motivated by reason of pregnancy or the exercise of
if he/she acted in bad faith. The accused person
the right to the abovementioned leaves (dismissal
will need to be informed of the accusations against
for an objective cause and disciplinary dismissal).
him, without further delay, and usually there will be
a department responsible for the investigation and
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 19the rights concerning data protection, although this
can be delegated to an external advisor, as well.
The registered information will be destroyed within
a maximum of two months after the end of the
investigation if nothing comes out of it. If there is a
legal case, the information can be retained as long
as needed by the company.
The possibility of filing an anonymous complaint is
generally prohibited, because there is a real need
to identify the complainant and the accused party.
Finally, the body responsible for the investigation
will need to inform the accused party regarding
the protection and confidentiality of their personal
information during all stages of the process, even
upon its conclusion.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 20IX. RESTRICTIVE
COVENANTS
1. Definition of Spanish Labour Legislation does not specifically
regulate this type of restriction, but case law has
Restrictive Covenants considered this restriction valid within the scope of
the non-compete clause.
Restrictive covenants are bilateral agreements
between the employer and the employee, and c. Non-solicitation of
are used to protect key business information and
ensure fair dedication to employees. It represents
employees
a limitation of the right to work and the free choice
Spanish Labour Legislation does not specifically
of profession or trade, so that any restriction of
regulate this type of restriction, but case law has
this constitutional right must be performed in
considered this restriction valid within the scope of
compliance with all requirements established by
the non-compete clause.
labour law. Non-competition rights and obligations
are regulated in the Workers’ Statute.
3. Enforcement of
2. Types of Restrictive Restrictive Covenants –
Covenants Process and Remedies
a. Non-Compete Clauses If the employee breaches the non-competition
agreement, he/she will be obliged to return the
Non-competition agreements are intended amount received for this concept and may be
to prevent an employee from working in a required to pay damages, should the company
competing company or sector after termination provide evidence of damage. In case of doubt
of employment. A non-compete obligation after when determining the amount of compensation
termination, may not last longer than two years for to be returned, or refusal from the employee to
technicians and six months for other workers, and comply with the agreed payment as compensation,
will only be valid if the following requirements are the employer may appeal to a social court or an
met: arbitrator (when specifically agreed) to determine
said amounts. Likewise, the employee can make
• the employer has an effective industrial or a claim against the employer when the agreed
commercial interest in such a non-compete compensation was not paid although the non-
obligation; and compete clause remains in full enforceability. The
• the employee is paid adequate economic clause itself could be declared void if the legal
compensation. requirements explained above (2a) were not met.
However, it is also possible to cancel the agreement
if both parties agree to it, but it can never be
b. Non-solicitation of cancelled or waived unilaterally.
customers
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 214. Use and Limitations
of Garden Leave
The term during which an employee remains on
normal salary and is bound by his/her contract of
employment, but at the same time requested by
the employer not to attend the office or contact
clients or customers, is usually used only on
disciplinary procedures while the investigation
takes place. The employer cannot, unless expressly
referred to in the employment agreement, put
the employee under garden leave, as they are not
provided for statutorily. This is the reason why they
may only be mutually agreed to within the scope of
the employment contract.
In the event an employer puts an employee
on garden leave without having regulated this
possibility within the contract, the employer bears
the risk of having the employee file a claim for
lack of occupation, which ultimately may result in
a court claim requesting a constructive dismissal,
on the basis of a severe breach of the employer’s
duties for not procuring sufficient occupation.
Employers often use garden leave during an
employee’s notice period to prevent the employee
from having further access to customers, clients
and staff and to prevent the employee from working
for a competitor, but this is generally used in Spain
only when there is evidence of gross misconduct by
the employee.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / spain | 22You can also read
