Getting fired in SpainDismissal for Smoking at work Upheld

Getting fired in Spain

In a sign of the times, the Tribunal Superior de Justicia in Murcia has considered lawful the sacking of a worker for smoking a cigarette in the male changing rooms at his workplace.

The Court, reversing the decision of the lower court, categorised the actions of the employee as a ‘very serious offence’ within the terms of the Collective Agreement that manages relations between employers and workers in the Canned Vegetable sector of the agricultural industry.

The Court also mentioned that the actions of the employer were consistent with Law 28/2005  which outlaws smoking in public and private workplaces. Accordingly, the employer could not be tolerant of such actions as were carried out by the employee in violation of the legal obligation introduced by the legislation.

The Supreme Court pointed to the fact that the company operated in the food sector which accentuated the need for hygienic practices and it considered it to have been proven that there were many signs hung on walls throughout the factory emphasising to the staff that smoking was prohibited and failure to comply with this rule could eventually lead to dismissal.

Specifically, the Court heard, in the male changing rooms, where the transgression had occurred, a sign was plainly visible that stated ‘Smoking Prohibited  – Royal Decree 192/1988’.

The decision should be considered within the context that it can be extremely difficult to sack an employee in Spain, and turning-up to work drunk or under the influence of drugs – actions that would be expected to incur instant dismissal in the UK – may not be considered sufficient breaches under Spanish employment laws to merit dismissal.

The employee had in fact previously been sanctioned for a serious breach in 2009 which caused an accident at the workplace as well as for misconduct.


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