Table of contents
- Getting fired in spain - your legal rights and employer obligations
- Objective dismissal
- Disciplinary dismissal
- Collective dismissal
- Unfair dismissal
- Redundancy due to force majeure
- Grounds for challenging an objective dismissal
- Challenging a dismissal for disciplinary reasons
- Dismissal when pregnant - during a trial period
- Dismissal for smoking at work upheld
- Companies may be entitled to monitor employees email accounts
- What to do if you get fired in spain?
- The spanish workers statute
- When teleworking may and may not be denied
1. Getting fired in spain - your legal rights and employer obligations
In Spain, the legal framework outlines several types of employee dismissal, each with its unique characteristics and implications. It is crucial for employers and employees alike to comprehend these distinctions to ensure lawful termination of employment contracts.
2. Objective dismissal
Objective dismissal occurs when an employee is terminated due to economic reasons, technical modifications, organizational changes, or production-related issues within the company. Employers are required to provide a 15-day notice and a severance pay of 20 days' salary per year of service, with a maximum of 12 monthly payments.
3. Disciplinary dismissal
Disciplinary dismissal is instigated by a serious and culpable breach of contract by the employee. This may include habitual absenteeism, indiscipline, or offenses such as harassment. In such cases, no severance pay in Spain is awarded, but the dismissal must be justified and communicated in writing, detailing the reasons for the termination.
4. Collective dismissal
When economic, technical, organizational, or production conditions necessitate the termination of multiple employment contracts, it is termed as collective dismissal.
This process is strictly regulated, requiring consultation with workers' representatives and adherence to specific procedural requirements, as laid out in the collective bargaining agreement, and includes notifying the labor authority. Employees are entitled to a severance pay of 20 days' salary per year worked, capped at 12 monthly payments.
5. Unfair dismissal
If a dismissal is deemed unjustified or unlawful, either due to lack of grounds or non-compliance with procedural requirements, it is classified as unfair dismissal. In such instances, employers have the option to reinstate the employee or pay compensation equivalent to 33 days' salary per year worked, with a maximum of 24 monthly payments.
6. Redundancy due to force majeure
In extraordinary circumstances, such as natural disasters, conflicts, or other unforeseeable and unavoidable events, employers can terminate an employment contract citing force majeure. This requires authorization from the labor authority and may entail compensation, depending on the circumstances.
7. Grounds for challenging an objective dismissal
We recently discussed dismissal from employment in Spain based on financial grounds i.e. where a business is suffering an economic downturn and the employer claims they must lay-off staff for the business to remain commercially viable.
We argued that there is a reasonably good possibility of challenging such a dismissal, with a successful challenge meaning that the dismissal is declared to be ‘unfair’ and a higher amount of compensation is achieved - 33 day’s pay per year worked instead of the 20 days per year worked that is standard where the dismissal is considered to be objectively fair.
The fact that a company is suffering a period of financial difficulty is not sufficient of itself to render a dismissal as legitimate and fair.
In order to demonstrate that a dismissal was justified, in the face of a challenge by the employee, the employer must overcome a number of hurdles:
- Prove that the company is undergoing an adverse economic situation. Nowadays, this is the easiest hurdle for the business to overcome, since there are many companies suffering financial difficulties.
- Demonstrate that this financial difficulty has sufficient magnitude to affect the volume of employment, making necessary the reduction in the number of employees. So while it may well be that the economic position of the business is poor, it may no be so grave as to justify the reduction in worker headcount. Here it is important to note that if a person is employed by a company, while having also carried-out work for another business which forms part of the same group of companies, then it is possible to include both in the claim for the dismissal to be declared unfair, and the economic difficulty must affect both businesses for the dismissal to remain fair. Therefore if the other business is functioning with no financial problems, the dismissal would be declared to be ‘unfair’, triggering the higher compensation.
- Demonstrate that the dismissal was an appropriate measure to respond to the financial difficulties that the business was suffering. This means that, although the business may well have financial problems, there may be other - less drastic - measures, than dismissal, that can be taken in order to remedy the situation. For example, if the business, before going ahead with the dismissal of the worker, has been taking on other employees for similar positions in the company, that would be a sufficient reason for the dismissal to be considered ‘unfair’.
- The ‘carta de despido’ is a very important document and is where many court actions against unfair dismissal are won. This document must specify very clearly the reasons for the dismissal, explaining the account of the company and specifying figures, in such a way that the employee has sufficient information to defend their rights. In addition, at the time of the dismissal, the company must provide the worker with the appropriate amount of compensation.
Taken together, the hurdles that the employer has to overcome can be significant and may well ensure that the worker achieves a higher level of compensation than initially offered.
8. Challenging a dismissal for disciplinary reasons
Firstly, an employee must file a conciliation act claim within 20 working days from the date they were notified of the dismissal. During the conciliation act, several outcomes can occur:
If an employee unjustifiably fails to attend, the case is archived.
If the employer doesn’t attend, they are responsible for paying the costs (up to €600), and conciliation is deemed attempted without effect.
If both parties agree, the agreed terms are fulfilled, whether it’s job reinstatement or dismissal with compensations and procedural salaries.
If no agreement is reached, an employee can file a lawsuit in the Social Court within the remaining days of the initial 20-day period allocated for requesting conciliation.
In summary, an employee can appeal a disciplinary dismissal by initially filing for a conciliation act within 20 working days of dismissal notification. Depending on the conciliation outcomes, whether it’s non-attendance by either party, an agreement, or no agreement, an employee has various options, including job reinstatement or proceeding to a lawsuit in the Social Court.
It should be stated that an employee needs to consider thoroughly the possibilities of success and weigh the evidence that the employer may have against them.
9. Dismissal when pregnant - during a trial period
The Supreme Court has taken the opportunity of hearing a case involving the dismissal of a pregnant woman from her place of work to consider the boundaries of Spanish employment law, in particular Article 55.5.b of the Ley de Estatuto de los Trabajadores (Law 39/1999) which is the principal legislation in this area.
This particular piece of legislation renders invalid the dismissal of a woman from her employment from the moment she becomes pregnant until after the regulatory period of maternity leave.
Art 55.5.b states, and this is the case regardless of the motive for the dismissal and where it is demonstrated that the employer had no knowledge of the pregnancy: "Dismissal in the following circumstances shall also be considered invalid: b) That of workers who are pregnant, from the date upon which they became pregnant until (...) the period of maternity leave or those workers who are at the time on maternity leave or have requested maternity leave"
Once a dismissal has been declared invalid, the worker has the right to readmittance to her place of work and to receive any pay that she would have received for this period of work.
In this particular case the employee had become pregnant after being given a six month contract to work in the sales department of the respondent company, but was dismissed within the initial two month trial period for failing to reach the sales objectives.
The company had claimed to be unaware of the fact that the employee was pregnant though the employee claimed that she had told her employers that she had become pregnant. In their defence the employer said that they had also dismissed a male employee who had also failed to achieve the sales targets during the trial period.
The Supreme Court decided by a majority decision that, effectively the termination of the contract between the employee and the employer was not a dismissal as the trial period had not been exceeded.
While the Court affirmed that dismissal of an employee during the trial period would be an invalid dismissal if it infringed fundamental rights, the dismissal of a male employee at the same time and for the same reasons evidenced that the motives for the dismissal did not relate to personal attributes of the employee i.e. such as her gender, but rather related to objective issues such as aptitude for the job.
10. Dismissal for smoking at work upheld
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.
11. Companies may be entitled to monitor employees email accounts
The Constitutional Court in Madrid has ruled that the monitoring of an employee's email account by the employer company did not infringe the employee's constitutional right to privacy nor the right under the Spanish Constitution not to have private communications intercepted, particularly those communications made by telephone, telegraph, or post, in the absence of a court order permitting such interception.
The Court rejected the appellant's submission that by accessing the employee's communications the company had acted disproportionately and instead referred to the actions as 'justified' since they were based on suspicions created by the irregular behaviour of the employee, 'appropriate' to determine if the employee was revealing privileged information to third parties and 'necessary' to justify the dismissal of the employee. The Court also considered the company's actions to be 'considered and balanced' given that none of the messages scrutinised related to the employee's private life.
12. What to do if you get fired in spain?
If you get fired from your job in Spain, the best advice you will receive from a lawyer experienced in the field of Spanish employment law is: don't waste any time.
The reason this is valuable advice is because in Spain, the deadline to appeal against a dismissal is strict and clear: 20 working days from the notification of the dismissal. Once the notification of dismissal has been received (usually by letter) the first thing you have to do is contact a lawyer in order to review the dismissal as you might be entitled to:
Compensation of up to 33 days for every year you were employed, or
In some cases, you might be also entitled to get your job back, with the payment of all the unpaid salary from the day of the dismissal until the reinstatement.
On top of that, in line with our experience in such cases, it is possible to say that in many situations, while reviewing the case, we find out that the employer was infringing the worker’s rights, for example by (among other things):
Giving less days annual leave than that which is established according to the Collective labour agreement;
Paying the worker less than the amount established according to the Collective labour agreement;
Paying overtime hours at a lower rate than the amount established according to the Collective labour agreement;
Unfortunately, we have seen many cases where, despite the worker having very high probability of obtaining considerable compensation, they have missed the opportunity because they us after the expiry date for bringing a claim. It is of course a great pity when this happens, and of course it is a source of instant regret for the employee affected.
Once you appeal the dismissal, there is a mandatory referral to mediation (in normal cases, around 3 weeks from the claim) where both parties will be called to try to reach an agreement. The former employee (or an appointed representative) must always be present at the mediation, otherwise the claim will be automatically dismissed.
In case no agreement can be reached, the lawsuit will continue before the Court (Juzgado de lo Social). Another helpful thing to note is: never lose hope or decide not to claim because the Employer goes bankrupt. In Spain, there is a special fund that covers workers credits towards the Employee up to quite a considerable amount, in order to protect workers’ rights. In conclusion we can say that the “keywords” for anyone who has been fired in Spain are:
Contact an employment lawyer in Spain.
13. The spanish workers statute
The Spanish Workers Statute is a legislative code applicable to employees who, on a voluntary basis, provide paid services within the scope of organization and management of an employer. Therefore, its main objective is to establish a regulation of the employment relationship between the employer and the employee that arises from the signing of an employment contract.
The European Framework Agreement on Teleworking, of July 16, 2002, defines teleworking as a form of organization and/or performance of work, using information technology in the framework of a contract or performance of work, in which work that could also be carried out on company premises is carried out outside these premises on a regular basis.
The change to teleworking does not affect the employment status of the workers, but only modifies the way in which the work is carried out. Since the company can voluntarily offer the staff teleworking, if an employee who meets the requirements of teleworking accepts the offer, and the company then denies it, they will have to do so in a justified manner.
Recent pandemic brought to light a different way of working with its specific issues, the Spanish Workers' Statute on frontpage due to this new trend.
14. When teleworking may and may not be denied
For example, if an employee has a role in the company that, despite meeting the requirements for choosing teleworking, their presence at the premises is absolutely necessary for any reason (let's say, the secretary at the entrance to open the door to greet people that want to enter the company), the company should justify their decision not to concede teleworking to that employee. So, the workers' role within the company may require them to stay at the premises.
On the other hand, it is acceptable to move from teleworking to the traditional working modality in the company facilities as long as the teleworking had not been agreed in the initial contract, but in a subsequent agreement, and always by individual agreement or collective one (European Framework Agreement on Telework 16-7-02 art.3).
Teleworking allows a variety of work activities - even full-time - for those who are in a situation of absolute permanent disability or highly disabled. Therefore, teleworking is configured as an incentive for the desirable social reintegration of workers with diminished capacity. If the company and the worker agree on the teleworking modality, such agreement must be made in writing.
By law, remote workers also have the same rights as those who provide their services at the company's workplace. Only those rights that are required to be carried-out in the employer's offices are excluded. For example, the concept of overtime and the employer's obligation to pay them are exactly the same in the case of teleworking as in the case of face-to-face work in company facilities.