Terms and Conditions of Employment
1.1 What are the main sources of employment law?
Employment law is a complex and changing area of law which brings together multiple regulations on the basis of hierarchical dependence. Supremacy is represented by the Spanish Constitution, followed by the law, Collective Bargaining Agreements (which have been ruled to be collective employment contracts between employers and employees – or Unions; with a spirit of generalised applicability as that of legislative instruments), employment contracts (whether individual or collective), habits or usages (which will only apply absent all the above or by express reference), and judicial precedents (binding judicial precedents are those virtualised in rulings from the Labour Chamber of the Supreme Court).
Moreover, Spanish employment law also includes international treaties incorporated into the Spanish legal system, EU regulations of direct applicability as a Member State, recommendations and resolutions of the International Organisations of which Spain is a member, and case law from the European Court of Justice and the European Court of Human Rights.
These international legislative mechanisms are not as relevant as local law. However, they have become increasingly relevant and noticeable since they have managed to change current national regulations in aspects such as the recognition of specific marital unions for State-subsidised benefit eligibility, the change in the reference unit for collective dismissals, and the granting of the same severance framework to employees with permanent and fixed-term contracts.
1.2 What types of worker are protected by employment law? How are different types of worker distinguished?
Employment law protects ordinary employees, as well as those employees who hold a special bond with their employer. The former are regulated by the Workers’ Statute which provides for large employee protection and sets the minimum standards to take into account in employment agreements (driven by the idea that employment relationships are still uneven and unbalanced in terms of rights and duties between an employer and an employee). The latter are regulated individually in several pieces of legislation which address the specialty of each of one of them.
Ordinary and special employment bonds between an employer and an employee relate to a different level of commitment between the parties to the contract, or to the object matter of the contract. Hence, we have special relations such as that of imprisoned individuals, professional sportspeople, trade representatives, stevedores, lawyers and even artists and performers.
The most significant special relationship is that of Senior Managers (or also called Top Executives), which is specifically regulated in a separate piece of legislation and is highly dependent on the bond of trust and confidence between the parties. Its main features include a very low minimum severance upon termination (which may be raised upon agreement), and significant room for the negotiation of terms & conditions.
1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?
The general rule is that a binding, legally enforceable employment contract can be executed in writing or orally. It is left entirely to the parties to agree on its form. Nevertheless, this general rule does not apply to certain employment agreements where the immediacy and recurrence in the performing of the employment-related services is not as intense as in a full-time permanent relationship (i.e. internship agreements, training agreements, part-time contracts, fixed-term contracts with an expected term of more than four weeks, permanent seasonal contracts, teleworking contracts, agreements to procure replacement of workforce, or those entered into in Spain to cover a job position abroad).
Regardless of the form of the contract, employment law mandates that the employer must provide the employee with written details on the so-called basic terms of the contract, these being the commencement date of employment, type of contract, professional group, salary, working hours, and the applicable Collective Bargaining Agreement.
1.4 Are any terms implied into contracts of employment?
There are several duties and rights which both employer and employee must observe during the employment relationship that are considered to be implied since: (i) they are not expressly and profusely set out and provided for in the applicable regulations; and (ii) they do not require specific compensation in consideration thereof. The most important remain the employee’s duty of trust and confidence towards the employer, and the duty of loyalty which refrains the employee from pursuing personal gain or advantage in detriment of the interests of the employer.
1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?
Both employer and employee must observe the minimum standards and practices set out in the applicable statutory regulations and the applicable Collective Bargaining Agreement. Likewise, they must observe the minimum wage limitation which is reviewed on a yearly basis by the Government.
1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?
Collective Bargaining Agreements have been traditionally negotiated by and between the most representative Unions and Corporation representatives in every specific industry or sector. In that sense, employers and employees could only adhere to the terms set out in the resulting Collective Agreement or chose to improve the standard terms and conditions referred therein (either at a collective or individual level). However, the well-known and well-regarded Spanish Labour Reform passed in 2012 allowed more flexibility to execute Collective Bargaining Agreements at a company level, which are now set to prevail over the industry Collective Bargaining Agreements in issues as important as salary, compensation of overtime, working time schedule, annual holiday plan and specific mechanisms for an appropriate balance between working and family life.
Employee Representation and Industrial Relations
2.1 What are the rules relating to trade union recognition?
The Constitution ensures that every individual has the right to join (and to refrain from joining) a Union, to serve as a representative of that Union at a company level, and to be elected as an employees’ representative within the workplace.
Likewise, from a collective standpoint it guarantees the right to generalised unionisation, and even confers extensive representation powers on the so-called “most representative Unions” at a legislative level as a valid interlocutor with the Government in key decisions related to the labour market.
Both the Workers’ Statute and the Union Freedom Act regulate the specific rights and duties of the elected members of the employees’ representation bodies. Their prerogatives include consultation and the delivery of corporate information whenever prospect decisions from management may affect the level of employment within their scope of representation.
2.2 What rights do trade unions have?
Regardless of the right to stipulate their own internal functioning procedures (as any other legal organisation), they have specific rights which may affect the employer-employee relationship on a daily basis. In this regard they may: (i) participate as employees’ representatives in collective bargaining procedures such as collective dismissals or collective material alterations of working terms and conditions; (ii) file individual/collective complaints and represent the interests of the affected employees in Court; and (iii) call for workplace elections to choose employees’ representatives.
2.3 Are there any rules governing a trade union's right to take industrial action?
Industrial action, as well as the employer’s right to lockout, are two sides of labour conflicts which are regulated specifically in the Strikes Act 17/1977. However, the lack of detail in such regulation on what should be permitted or considered abusive from either side makes the legality and articulation of these situations highly dependent on case law and judicial precedent.
2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?
Employees are entitled to elect workers’ delegates or a works council (the former only in workplaces employing between 11 and 49 workers; the latter where 50 or more individuals are employed), although they are not compelled to do so if they prefer to remain without formal representation before the employer. The election process is carefully regulated in the Workers Statute and Royal Decree 1844/1994 on Union Elections and is formally supervised by the Labour Authority. Representatives are chosen from amongst the employees themselves and the company may only facilitate the election process by providing relevant information on headcount and by making the company’s premises available for the polls on the day of the election.
Workers’ delegates and works councils are entitled to receive, amongst others, relevant and updated information from the employer on company performance and business prospects, levels of absenteeism, information on the hiring of new employees and consultation when corporate decisions may affect the level of employment within their scope of representation. Apart from the main purpose of controlling the management in whatever issues may affect the workforce in the short term, they also embody the ideal of cooperation with the employer when implementing measures to enhance productivity and competitiveness.
On the other side, they are subject to a general duty of confidentiality and non-disclosure.
2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?
Neither workers’ delegates nor works councils have co-determination rights. In this sense, even if the employer has the duty to inform or consult with these on specific issues, their refusal to follow the corporate decision would not stop the employer from legally going ahead with the unsupported actions.
Nevertheless, despite the above, it is always important and relevant to ensure the representatives’ conformity with the management’s proposals in order to preserve a working environment free from tension and exasperation.
Despite this lack of co-determination rights, there are current projects to increase the employee’s representation at a managerial level. For instance, law 31/2006 on the implication of employees in the European Companies and Cooperatives has incorporated EU policies which foster the implication of workers’ representatives in decision-making processes at board level, although there is still no specific mechanism which would grant the formal incorporation of a Union to the board.
2.6 How do the rights of trade unions and works councils interact?
Workers’ delegates and works council members are often affiliates of Unions, although this is not a prerequisite to being elected. In fact, they operate as two different ways of procuring labour representation in the company: on one hand the employees’ representatives which are universally elected by all workers and represent all of them before the employer; and on the other, Union representation within the workplace in the form of a Union division, which can only be set up in workplaces employing 250 employees or more, and where only the employees who are members of such Union are represented.
From a practical standpoint both ways of gaining representation interact on a daily basis, and both categories of representatives are protected by statutory regulations and by the Union Freedom Act.
2.7 Are employees entitled to representation at board level?
No, they are not.
3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
The Spanish Constitution provides for protection against discrimination and retaliation on the basis of the following protected traits: birth; race; sex; religion; or any other personal or social condition. This specific protection has been inserted into the employment statutory regulations in a rather more broad manner, whereby employers must always protect employees against discrimination and retaliation on the basis of sex, marital status, age, race or ethnicity, social condition, religion or belief, political opinion, sexual orientation, union membership, and preference to choose a certain co-official language of communication rather than Spanish.
This protection does not only address an active role on the side of the employer in acting against proven discrimination and retaliation fact patterns, but mandates the employer to engage in preventive measures to avoid potential conflictive situations.
3.2 What types of discrimination are unlawful and in what circumstances?
Discrimination is considered unlawful both in its direct and indirect manner from a statutory standpoint. In this sense, it is not only reprehensible when the unlawful conduct is directly intended to discriminate, but also when the employer indirectly treats certain individuals and/or group of employees differently from others for reasons other than those which are objective or business-driven.
3.3 Are there any defences to a discrimination claim?
The burden of proof lies on the employer to provide evidence that no discrimination has occurred. In this sense, we should differentiate between two types of situations when talking about discrimination claims: the ones filed by protected employees where no legal defence to the claim is possible (the protected nature of the employee triggers an automatic confirmation of the alleged discrimination); and those claims filed by unprotected employees where statutory regulations admit legal defence by the employer (namely that the decision or act challenged was not driven by discrimination impulses but by other business-related reasons).
3.4 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?
Employees may challenge any employer decision which they understand has been taken on the basis of discrimination, by filing a claim before the Labour Courts. The claim should request the reversal of the allegedly unlawful decision and/or request the termination of employment in the event of constructive dismissals with related severance. If the discrimination is finally awarded by the Court, the employee may also request compensation for the breach of the individual fundamental rights and the damages inflicted.
Parties may settle disputes before the ruling of the Court is issued. However, the law mandates (not in relation to all types of claims) that a previous conciliation hearing must take place before the filing of the claim to exhaust redress procedures and ensure that the parties have at least one preliminary meeting to go over the specific request of the employee.
3.5 What remedies are available to employees in successful discrimination claims?
As pointed out in our previous answer, the employee may be successful in having the Court decide that the employer’s discriminatory decision must be reversed, or having the Court decide that the employer has not duly prevented the situation or protected the employee against the discrimination, and hence terminate the contract on the basis of constructive dismissal. The latter would trigger the payment of the highest statutory severance.
3.6 Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
No, they do not. Atypical workers have the same level of protection as any other employee. Please note that a recent ruling from the European Court of Justice has reinforced the EU’s commitment to uphold this equal protection, especially regarding the termination and severance legal framework.
Maternity and Family Leave Rights
4.1 How long does maternity leave last?
In relation to maternity, adoption and foster care, female employees are entitled to a leave of absence of up to 16 uninterrupted calendar weeks (to be further extended in the event of multiple births or premature childbirths).
The mother must mandatorily be on leave for the first six weeks. The remaining period of time may be transferred over to the father or kept by the mother to complete her 16 weeks in total.
4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave?
Mothers on maternity leave are entitled to Social Security benefits in the form of a monthly instalment amounting to 100% of their Social Security regulatory base. This benefit shall be in place throughout the whole term of the leave.
Fathers are also entitled to social security benefits, but only for as long as they remain on paternity leave (13 calendar days). This period may be added to any transferred leave of absence to which the mother may have relinquished.
She would also benefit from public health insurance for the new-born.
4.3 What rights does a woman have upon her return to work from maternity leave?
A female employee returning from maternity leave has the right to be reinstated in her same job position under identical employment terms and conditions as prior to her absence. This prerogative also applies during the first year of the leave of absence she is also entitled to take in order to look after the newborn.
4.4 Do fathers have the right to take paternity leave?
Yes indeed, the father may opt to take paternity leave for a total period of 1 calendar month as from January 2017. Although fathers have the possibility of taking this month off whenever they choose as long as it falls within the 16 calendar weeks of maternity leave, it is usual to have male employees request the paternity leave straight after the two days’ leave they are permitted to take in order to attend the baby’s delivery have elapsed.
Extended paternity leave applies in cases of delivery of multiple babies or when babies are born with some sort of disability.
4.5 Are there any other parental leave rights that employers have to observe?
Female workers are entitled to one hour of absence from work every day to breastfeed an infant aged less than nine months.
Women, at their choice, may substitute this right for a reduction in their working day by half an hour for the same purpose, or accumulate this into complete days under the terms provided for by the applicable Collective Bargaining Agreement or by mutual agreement. Although this working time reduction was originally intended for breastfeeding, case law has interpreted that it is aimed at procuring the better adaptation of the new-born to his new life, and therefore this entitlement is open for the working father as well as the mother. It has even been granted by case law to fathers whose female partners were not legally entitled to this breast-feeding time-off (due to their condition of self-employed individuals).
Moreover, either parent may opt for a formal working time reduction (between an eighth and a half of his/her working time) for as long as the child is aged under 12, with a proportional reduction in salary and in other compensation benefits.
4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants?
Any employee considered to be directly in charge of a child under 12, or any other person with special caring needs (for as long as they are siblings of up to the second degree of consanguinity or affinity), is entitled to a working time reduction, with a proportional reduction in salary and in other compensation benefits.
Such working time reduction must take place within the employee’s working time schedule and remains a choice of the employee to which the employer has a right of veto for business-related reasons.
5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer?
Section 44 of the Workers’ Statute has been enacted in response to the EU regulations which mandated the passing of a piece of legislation at EU Member States’ level which guaranteed the continuance of employee job positions and salaries in the event of an asset transfer. In this regard, the transferee would subrogate in the transferor’s rights and obligations, and so must respect every single term and condition applicable to the existing workforce.
However, should the transaction involve only a share purchase or a change in the company’s legal status, this would not trigger a protected situation for the workforce.
5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements?
The new employer (transferee) shall be subrogated in all labour and Social Security rights and obligations of the former, including pension and other benefits’ commitments, under the terms set forth in the specific statutory regulations and the applicable Collective Bargaining Agreement.
Upon a transfer, the affected workers’ relationship shall continue to be governed by same Collective Bargaining Agreement as before up until this last one expires without renewal, or until a new Collective Agreement is deemed to apply to both the transferred employees and the ordinary ones.
5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult?
Section 44 of the Workers’ Statute mandates that both the transferor and the transferee must inform the affected employees’ legal representatives, in writing and sufficiently in advance (construed by usages to be a minimum of 15 calendar days), on the following terms of the transfer of undertakings:
- envisaged date of effective transfer;
- causes for the transfer;
- legal, economic and social consequences of the transfer for the workers (in the event of envisaged workforce streamlining projects or relocation); and
- measures set forth with regard to the affected workforce in the event of drastic changes in the level of employment.
As pointed out in c) and d) above, in the event an alteration of working terms & conditions and/or a collective suspension/termination project is in place and is duly communicated, a consultation must be called for to negotiate the contents of such alteration and/or suspension/termination decisions.
Should neither the transferee nor the transferor kick-off the consultation procedure, then they would be considered in serious breach of applicable legislation and would be subject to a fine by the Labour Inspectorate.
5.4 Can employees be dismissed in connection with a business sale?
The implementation of TUPE regulations within the EU (via the Directive which requires an active implementation into local law by all EU Member States) aimed to prevent transferred employees from release when their job positions remain within an autonomous and productive unit (such as a work centre or an independent branch of activity) after the sale. They have the right to remain within their unit for as long as it exists.
However, the transferor may not choose to terminate all employment contracts for a legally binding cause, to avoid being considered liable for the transfer of workforce when indeed the business sale did not match the TUPE requirements as per workforce, and/or the transferee does not want to take the employees on board for undisclosed reasons.
5.5 Are employers free to change terms and conditions of employment in connection with a business sale?
Neither the transferor nor the transferee has full freedom to unilaterally change the terms and conditions of employment in connection with a business sale. In this regard, the business sale in itself is not a valid reason to proceed with a material alteration of working terms and conditions.
Nevertheless, should both parties envisage that changes in such terms and conditions be brought into effect, a consultation period must be called in order to determine – along with the employees’ representatives – what these changes should be.
Termination of Employment
6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined?
Employees must always render written notice of their intention to leave the company. They are mandated to honour the notice period they may have agreed to in their employment agreement, or abide by the notice term referred to in the applicable Collective Bargaining Agreement. Should there be no specification on the length of notice, a customary 15-calendar day period would apply.
6.2 Can employers require employees to serve a period of "garden leave" during their notice period when the employee remains employed but does not have to attend for work?
No they cannot, unless expressly referred to in the employment agreement. Garden leave clauses 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 included such a clause in the contract, the employer risks the employee claiming an undue lack of occupation, which ultimately may result in the employee pursuing a court case seeking to uphold a case for constructive dismissal (on the basis of a severe breach of the employer’s duties for not procuring sufficient occupation).
6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?
Dismissed employees may resort to challenging their dismissal in Court. For that purpose they must clear a mandatory first stage conciliation claim where any agreement will have the same legal validity as a Court ruling.
Generally speaking, there are two kinds of dismissal: express (written); and tacit. Only express (written) dismissals are considered to be legal. Tacit or implied terminations are to be taken as unfair or null and void, since they fail to meet the written statutory requisite, if not infringing upon the affected employee’s fundamental rights.
Employees are treated as being dismissed when there is a formal explicit communication sent out by the employer stating the cause for the termination, as well as the other relevant statutory requisites according to the type of dismissal. It would not fall within the fair dismissals area (and therefore, is not advisable), however we should point out that employers also treat employees as dismissed when they remove them from payroll, ban them from entering the employer’s premises, or verbally warn them not to come back to work.
Consent from a third party is not required under any circumstance to proceed with an individual or collective dismissal.
6.4 Are there any categories of employees who enjoy special protection against dismissal?
Referring to our answer to question 3.3, any employee (whether female or male), who is on leave or away from the company due to maternity, paternity, or childcare circumstances is automatically protected against dismissals. This protection grants his/her reinstatement plus the payment of back pay and any compensation for damages that the Court may feel appropriate, in the event the dismissal is nevertheless taken into effect.
6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so how is compensation calculated?
1) Employers are entitled to dismiss employees on the basis of their behaviour when such behaviour is deemed to constitute gross misconduct.
Termination related to circumstances exclusively related to the employee is also possible during the probationary period when the employee is dismissed due to his incapacity to perform the basic responsibilities of his position.
In both cases there is no right to statutory severance.
2) Termination based on business-related reasons (or redundancy) is triggered upon the elimination of the affected employee’s position for technical, organisational, productive or economic reasons or constraints.
Compensation for redundant employees statutorily amounts to 20 days of salary per year of service, capped as of one year’s salary. For this purpose, salary is construed to include any and all remuneration concepts paid to the employee in his/her last monthly pay slip, excluding the so-called supplementary benefits. Only when the employee is entitled to certain salary concepts which vary greatly on a monthly basis will the calculation take into account a mean average of his/her annual salary.
6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals?
Employers must provide (i) written notice of their intention to terminate such contract, (ii) such notice must include the causes for the termination and a detailed explanation on the events that have led to the termination, and (iii) the notice shall also refer to the effective date of termination (disciplinary dismissals usually take effect immediately, although the employer has the possibility of introducing a longer period for the termination to take effect).
There is no statutory mandate to attach relevant documentation in support of the causes set out in the letter.
6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?
An employee may bring a formal claim challenging: (i) the ultimate causes for the termination; (ii) the lack of compliance with formal statutory requirements; or (iii) the validity of the termination (since it breaches his/her fundamental rights; since there are grounds to be considered retaliation against the affected employee; or since the decision has been taken to disregard the employee’s protected situation).
Remedies for challenges based on points (i) and (ii) above are the declaration of the unfairness of the dismissal and the award of statutory severance amounting to 45/33 days of severance per year of service. For the situation depicted in point (iii) the remedies are the invalidation of the termination decision, immediate reinstatement of the affected employee, payment of back pay and the award of general and special damages upon production of sufficient evidence to prove these are necessary.
6.8 Can employers settle claims before or after they are initiated?
Employers may settle existing claims (anytime up until the Court issues its ruling), and even prospective claims that may not yet have been filed, as long as the termination has been communicated to the affected employee. The Spanish Constitutional Court has established that in order to settle a dispute, that dispute must exist at the time of the settlement, and since the core of the dispute in this case would be the communication of dismissal itself, any settlement must take place after the communication.
6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time?
Absolutely. The collective termination of a number of employment contracts within a period of 90 days would trigger the obligation to terminate such contracts by means of a collective dismissal procedure. This procedure is more burdensome than proceeding through individual dismissals since it triggers consultation with employees through workers’ representatives, mandatory communications of such consultation to the Labour Authority, the surveillance of such process by the Labour Inspectorate and a firm time constraint as to the dates in which the terminations may be taken to effect.
6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations?
They enforce their rights by: (i) actively participating in the negotiation period with the company, which has to be called for prior to the implementation of the dismissals; (ii) actively participating in the meetings that the labour authority and/or the labour inspectorate will hold with the parties to supervise the whole of the negotiation process and the final outcome; and (iii) having the right to challenge the dismissals both on an individual and collective basis (a collective objection estops individual claims and a final judicial decision on a collective demand has absolute authority as res judicata).
Protecting Business Interests Following Termination
7.1 What types of restrictive covenants are recognised?
The Workers’ Statute acknowledges the right of employers: (i) to restrict the employee’s capacity to compete against its business once they have exited the company; (ii) to force the employee’s exclusivity during employment to prevent him/her from working elsewhere; and (iii) to prevent him/her from leaving the company by agreeing to a permanence period in consideration of a particularly interesting training or academic programme.
7.2 When are restrictive covenants enforceable and for what period?
With regard to (i) post termination non-competes, this restriction is enforceable for as long as the parties agree to, although the maximum duration is capped at two years
The remaining (ii) and (iii) will last for as long as the relationship remains in force.
7.3 Do employees have to be provided with financial compensation in return for covenants?
With regard to (i) post termination non-competes, the answer is yes, it must be compensated to both parties’ satisfaction. The Workers’ Statute does not establish a specific percentage or amount which would serve as sufficient and valid as compensation thereof, however case laws points out that compensating this duty with between 20% and 50% of the base salary would do; with reference to (ii) exclusivity, this must also be compensated, the set amount is 10% of the base salary; and finally, (iii) when talking about permanence due to the specialisation of the affected employee through a training or academic programme, the employer would not have to compensate the employee and his/her only expense would be the subscription to the training course.
7.4 How are restrictive covenants enforced?
In order to enforce restrictive covenants any employer would have to resort to court proceedings and file a claim requesting specific performance or pay back. To be successful, the employer must be particularly confident that he/she implemented the restriction correctly (that is, that any restriction language was worded correctly and included in the employment agreement, and that any compensation requirement was met), since very recent case law has confirmed that restrictions can be deemed unlawful due to a lack of formalities. This would leave the employer with no grounds on which to request specific performance but just pay back, and this may not be at the company’s entire satisfaction.
Data Protection and Employee Privacy
8.1 How do employee data protection rights affect the employment relationship? Can an employer transfer employee data freely to other countries?
Employers are mandated to create a specific database with all the details they collect about their employees. The existence of this employee database must be communicated to the Data Protection Agency.
Depending on the importance of each specific piece of information from a given employee, the employer will be mandated to observe a specific level of protection and security (i.e. administrative details are to be processed with a minimum protection level; information on personal likes and dislikes and existing problems, debts or sanctions with the authorities are to be processed with a medium protection level; and information on personal beliefs, religions, political affiliation and health issues must be managed with the highest level of protection). Failing to create this database, as well as failing to ensure the adequate level of protection shall subject the employer to sanctions by the Data Protection Agency for the breach of data protection regulations.
The employee must agree in writing to having his/her details incorporated into a company database, as well as to having his/her details transferred to any third party, with the alternative choice to opt out if he/she wishes. From a practical standpoint, the employer usually inserts this consent into the employment contract.
The transfer of data to third parties within the EU requires no specific authorisation. However, if such transfer is to a third party located outside the EU, the Data Protection Authority must authorise such transfer in writing.
Out-of-EU transfers are only permitted to countries which grant a similar level of protection to private details (“Safe Harbour”), such as the US, Switzerland, Canada, Argentina, and New Zealand.
On October 6, 2015, the European Court of Justice issued a judgment declaring as invalid the European Commission’s Decision 2000/520/EC of 26 July 2000 on the adequacy of the protection provided by the US in relation to the Safe Harbour privacy principles. This agreement has been replaced by the “Privacy Shield” Frameworks which subject data transfer to and from the EU (including Switzerland as a member of the European Economic Area) and the US to major and permanent scrutiny as well as strengthening the authorities’ accountability to irregular or illegal disclosure.
Furthermore, the European Commission has issued Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data repealing Directive 95/46/EC due to inconsistent adoption throughout the Member States. This new piece of legislation aims to provide one clear and comprehensive definition of personal data, reformulate the approval process for transferring data so that it is easy to understand and more easily accessible.
8.2 Do employees have a right to obtain copies of any personal information that is held by their employer?
Yes. Indeed any employee is entitled to request a full description of the personal details that are held by their employer, with an indication of the information’s source and level of protection.
8.3 Are employers entitled to carry out pre-employment checks on prospective employees (such as criminal record checks)?
Pre-employment checks (or Employment Background Checks) are in direct conflict with the right to privacy. If such checks investigate specific details on the employee-to-be which are considered to be private without have been given specific authorisation by the affected employee, this could trigger criminal liability on the part of the employer. Criminal records would definitely qualify as private information.
However, this kind of investigation from prospective employers are very rare in Spain since the vast majority of an individual’s sensitive and private information can only be accessed by them personally.
8.4 Are employers entitled to monitor an employee's emails, telephone calls or use of an employer's computer system?
Yes. To the extent employees’ devices remain the employer’s property, and that the employer informs the workforce sufficiently in advance on the possibility of monitoring, the employer may not only undertake these checks, but use them as evidence to sanction the affected employees in the event of unlawful use. This prerogative of the employer has been confirmed by the Supreme Court as well as by the European Court of Justice in numerous rulings.
In the event the two requisites above are not met, any check may be construed as a breach of the employees’ right to privacy (personal, and that of communications).
8.5 Can an employer control an employee's use of social media in or outside the workplace?
The same requisites as the ones referred to in our answer to question 8.4 apply here. In-house policies normally address the possibility of accessing social media although with limitations (i.e. giving a certain number of minutes of access per day). Customary use of these communication tools is generally possible. However, this remains at the discretion of the employer.
Court Practice and Procedure
9.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition?
The Labour or Industrial Courts are the ones with material jurisdiction over workplace disputes as well as employer-employee confrontation. They serve as Courts of first instance.
At a higher level we would find the Labour Chamber of the Superior Courts of Justice of each region in Spain, which, on a general basis, would have legitimacy to hear appeals on decisions from the Labour or Industrial Courts which lie below, and hear cases in the first instance when the controversy relates to a number of workplaces within the region where the Superior Court sits.
The Labour Chamber of the Supreme Court also has material jurisdiction on labour disputes although they may only hear cases in the first instance when they refer to a controversy involving workplaces located in different regions of Spain.
9.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? Does an employee have to pay a fee to submit a claim?
Conciliation is only mandatory in certain claims, namely those where the outcome need not be immediately adjudicated. Others where time is an issue are procedurally excluded from this previous requisite (i.e. claims related to social security, collective dismissals, vacations, workplace elections, relocation, material alteration of working terms & conditions, work/life balancing, or protection of fundamental rights).
9.3 How long do employment-related complaints typically take to be decided?
It largely depends on the subject of the complaint, but the time frame ranges from weeks to years.
For instance terminations typically take up to six months to be decided as from the filing of the claim, when other less urgent matters take up to one and a half years to be adjudicated (such as claims for payment).
9.4 Is it possible to appeal against a first instance decision and if so how long do such appeals usually take?
Not all decisions from the Labour or Industrial Courts can be appealed. Those which are not materially relevant (less than EUR 3,000), and those which deal with matters which require an urgent outcome (i.e. Union elections, controversy over the date in which holidays may be taken, disciplinary sanctions imposed by employers with little relevance), are banned from being appealed.
Appeals usually take between 9 and 12 months to be decided.