START OF THE EMPLOYMENT RELATIONSHIP
Who can work in Spain?
People entitled to enter into working relationships as employees in Spain are anyone over 18 years old who is not disabled and anyone under 18 and over 16 who is emancipated or who has parental or legal guardian consent.
Foreigners may be hired under the same conditions as Spanish people, provided they have previously been granted the relevant work permit. Nationals from the European Union, the European Economic Area and Switzerland are exempt from obtaining a work permit.
Minors under the age of 16 may not be employed. The only exception is their participation at public events, which can only be authorised in exceptional cases by the labour authorities, provided that this does not pose a threat to their physical health or professional and personal development.
What are the main sorts of employment contract in Spain?
Spanish labour law establishes a clear preference for permanent contracts. In fact, whenever a working relationship has not been formally executed in an employment contract, a permanent working relationship will be presumed to have existed. Based on the above premise, there are two main types of work contracts: permanent and temporary ones. Temporary contracts can further be subdivided into fixed-term and training contracts (internship and apprenticeship contracts).
What are their main features?
As the name suggests, the main feature of permanent contacts is that they are not subject to a fixed term. By contrast, temporary contracts are subject to a certain term, whether because a working relationship was simply entered into for certain amount of time only or because they were subject to the completion of a particular service.
Within temporary contracts, it is worth highlighting training contracts. These aim to facilitate the entry of young people into the labour market, whether they have qualifications (internship contracts) or whether they have no or very basic qualifications (apprenticeship contracts).
What information should employees be given in Spain?
In Spain, there is a general principle that states that ignorance of the law excuses no-one from its compliance, so companies must provide employees with:
• Information on their employment contract (professional category, functions, salary, duration, applicable collective agreement, etc.) by giving them a signed copy of their employment contract; and
• Information required by law on occupational hazard prevention in the company and, in particular, related to their job. In addition, the company must give employees tailor-made practical training on this matter.
DURING THE EMPLOYMENT RELATIONSHIP
What are the main employment rights in Spain?
Article 4 of the Spanish Workers Law (hereinafter WL) lists the basic labour rights, of which the following should be highlighted:
• The right to work and the free choice of a profession or trade.
• The right to join a trade union and to collective bargaining.
• The right to strike.
• The right to hold meetings.
• The right to information, consultation and participation in the company.
• The right to the timely payment of the salary agreed on or established by law.
• The right to suitable work.
• The right to physical integrity and to a suitable health and safety policy.
• The right to non-discrimination.
• The right to respect for individuals’ privacy and due consideration of their dignity.
• The right to promotion and to training at the workplace.
What are the maximum daily, weekly, monthly and annual working hours permitted by law?
The number of regular working hours may not exceed nine per day, unless another daily work schedule has been established by a collective bargaining agreement or an agreement between the employer and the works council. In any event, the right to rest between working days must be respected, namely at least 12 hours between the end of one working day and the start of the next.
Article 34.1 of WL establishes a maximum regular work schedule of 40 hours per week calculated over an annual average. There is no maximum monthly work schedule.
The annual work schedule is usually established in collective bargaining agreements, which in most cases is set at between 1,700 and 1,800 hours.
Is there a required minimum number of hours?
Employment contracts are not subject to a minimum number of hours.
What is the minimum holiday entitlement?
Article 38.1 of WL establishes that the entitlement to annual paid leave will either be set by collective bargaining agreements or the employment contract, but may not be fewer than 30 calendar days.
Furthermore article 38.1 of WL states that labour holidays cannot exceed 14 days in a year (2 of them will be local holidays).
Can an employment contract be modified while it is still in force? If so, under which circumstances?
An employer is entitled to unilaterally modify the terms and conditions of an employment contract in force, although a distinction must be drawn between modifications which are deemed substantial and those that are not. As these matters vary from case to case, the labour courts must be consulted in order to find out whether or not a modification introduced is substantial. However, and by way of example, changing from a continuous working day to a split working day would be considered a substantial modification, whilst moving the working day backwards or forwards by one hour would not.
If a modification is not substantial, the employer may make it without any formalities other than informing the employees concerned of the change. By contrast, if a modification is substantial, the employer must follow a legal procedure (which will depend on the number of employees affected) in order for the modification to be valid and will only be considered justified if there are economic, technical, organisational or production-related grounds for doing so.
Are any particular employment relationships subject to special protection?
Under Spanish labour law, there are two situations and one group of workers that have special protection:
• Maternity, which starts at the time of pregnancy and may extend for a long time afterwards (for example, as legal guardians either parent may ask for a reduction in working hours until a child has reached twelve years of age).
• All of the fundamental rights, together with the prohibition of any kind of discrimination.
• Protection of workers’ legal representatives, which is an indirect way of protecting all workers.
The most relevant aspect to be highlighted arising from this special protection is that any dismissals of protected workers will be deemed as null and void, unless a dismissal is found to be lawful on grounds not related to this special protection.
Are there any obligations to consult with a works council and/or to undertake collective bargaining?
In Spain, employees are represented in companies by what are known as workers' legal representatives, who may be staff delegates (one if the workforce is between 6 and 30, and three if the workforce is between 31 and 49), or members of the works council (at least five representatives in companies with a workforce of between 50 and 100, beyond which the number of representatives goes up in proportion to the size of the workforce), who are elected through a voting procedure passed by law.
Workers' legal representatives are entitled to information on many matters – they must be consulted by the employer before certain measures are adopted and their involvement is mandatory in collective layoff proceedings, such as the substantial downsizing of the workforce and redundancy consultation procedures.
END OF THE EMPLOYMENT RELATIONSHIP
When and how can an employer terminate an employment relationship?
The main grounds for the termination of an employment contract out of the choice of the employer or due to the employer's circumstances are as follows:
1. By mutual agreement with the employee.
2. On any of the lawful grounds set out in the employment contract, unless they constituted a clear breach of law by the employer.
3. Due to the expiry of the contractual term agreed on or the completion of the work or service that is the subject matter of the contract.
4. Due to the death, retirement or permanent disability of the employer if she/he is an individual.
5. Due to a disciplinary dismissal.
6. Due to a collective layoff on objective grounds (economic, technical, organisational or production-related) or due to force majeure.
7. Due to an individual dismissal on objective grounds (economic, technical, organisational or production-related).
When and how can an employee terminate an employment relationship?
The main grounds for the termination of an employment contract out of the choice of an employee or due to the employee's circumstances are as follows:
a) By mutual agreement with the employer.
b) Due to the voluntary resignation of the employee, who must give the notice set in collective bargaining agreements or the customary practices of the workplace.
c) Due to the death, retirement or permanent disability of the employee.
d) Due to the choice of the employee based on a serious breach of working conditions by the employer.
e) Due to the choice of the employee following the termination of her/his contract in the case of an authorised relocation that involved a change of residence.
f) Due to the choice of the employee following the termination of her/his contract in the case of a substantial lawful modification that would adversely affect her/his working conditions.
What are the economic consequences in each case?
• In cases 1, 2 and a), the pay-out that has been agreed on.
• In case 3, the employer must pay the employee indemnity of 12 days of salary per year of service.
• In case 4, the employer must pay the employee indemnity of 30 days of salary, regardless of the length of service.
• In case 5, if the dismissal is declared as lawful, the employer does not have to pay any indemnity; if it is declared wrongful, the employer must pay indemnity of 33 days per year of service up to a maximum of 24 months of salary (except contracts in force before 12 February 2012, in which case Temporary Provision 5 of Act 3/2012, of 6 July, will apply); or if the dismissal is declared null and void, the employer must reinstate the employee in her/his job and pay all salaries not received between the time of dismissal and reinstatement.
• In cases 6 and 7, if declared lawful, the employer must pay employees indemnity of 20 days per year of service up to a maximum of 12 salary payments. However, if declared wrongful or null and void the same applies as in case 5.
• In case b), the employer does not have to pay any indemnity nor does the employee have to pay the employer indemnity, unless the proper notice period is not given, in which case the employee must pay compensation equal to the salary of the notice period not given.
• In case c), the employer must pay indemnity if thus provided for in the collective bargaining agreement that applies, except in the case of the death of the employee, in which case the minimum indemnity is 15 days of salary.
• In case d), if a judge in a labour court terminates a contract due to serious breach by the employer, the latter must pay the employee the same indemnity as a disciplinary dismissal declared unfair (case 5).
• In cases e) and f), the employer must pay employees indemnity of 20 days per year of service up to a maximum of 12 salary payments.
Are there any situations in which an employment relationship would terminate automatically and without the need for action by either party? If so, what are they?
The answer to this question is included in the previous one.