Like in many developed countries, Spanish Employment law is a specific jurisdiction created to protect the employee from being exploited by their employer.
In Spain this protection is particularly intense to the point that in the event of a court hesitating about which party to side with if facing a contradictory account of events between the employee and the employer, the court will choose the employee following the principle of in dubio pro operario (in the event of doubt, favour the employee).
Spanish employment regulations will be applicable not only to employees carrying out their work within the Spanish jurisdiction but also to employees hired in Spain by Spanish companies carrying out their work abroad, insofar as they do not contravene local public order and the employee still benefits from at least the same monetary rights that would apply had he/she worked in Spain.
Residing & Working in Spain
All European & EEE citizens are free to move and work in Spain along with their family, regardless of their nationality, which includes husband or wife not divorced, duly registered civil partners, descendants under 21, or above 21 if they are disabled, and any family member who is economically dependent. Since 9.12.2015 the concept of dependent has been extended to any family member who can demonstrate that they were dependent upon the EEE member in the country that the family came from at the time that the member entered Spain, or that it is strictly necessary that they live together due to disability or health issues, or, for partners, that there is evidence of a relationship for at least one continuous year.
All other citizens would require a visa and working permit in order to reside and work in Spain, exception made to members of diplomatic missions, technicians and scientists invited by Spanish government (including local government), universities or other research institutions, members of other governments military forces, member of religious institutions, artists performing for a limited amount of time, media reporters, minors allowed to work, members of unions, and representatives of business organisations.
It is important to note that, even when no visa or certificate to work would be required, the applicant must still submit the relevant application before the corresponding Spanish Consulate indicating that he qualifies to be exempted to get the visa.
At Scornik Gerstein LLP we have solid, proven experience assisting individuals and companies with preparing their application and accompanying supporting documentation for them to enter and work in Spain, thus minimizing the risk of suffering a potential refusal. We have also developed a robust salvation procedure for urgent cases where there is no material time for someone who is exempt to follow the procedure before the Spanish Consulate. This has been always successful to date.
Spanish Employment Contracts
One of the main pieces of legislation that governs employment relationships is the Estatuto de los Trabajadores (equivalent to the UK Employment Act). It defines what an employment relationship entails and determines certain employment activities as “special”, providing for separate specific regulations to those special employment activities, as follows:
- Company’s senior director
- House cleaners
- Jail prisoners
- Professional sportsmen/women
- Public performance artists
- Company’s sales agent
- Handicapped workers working at special employment locations
- Stevedores
- Any other to be determined as special activity
The above special relationships are regulated separately by their own individual regulations.
It is therefore important to determine whether the employment relationship falls within any of the above mentioned “special” categories to ensure the correct legislation is taken into account when considering drafting their employment contract or considering the employment rights to which such employees would be entitled.
Dismissing an employee in Spain
For an employer to dismiss an employee in accordance with Spanish employment regulations must do so in writing, indicating the reasons for the dismissal and the date of the termination of employment.
A dismissal will either be lawful, unlawful or null.
It will be lawful if the employer demonstrates that it was properly carried out as described above and the employee was in breach of his contract. Otherwise it will be considered unlawful, in which case the employer will decide whether to readmit the employee within 5 days of the employment tribunal order indicating that the dismissal was unlawful, or to confirm the termination by compensating him with an amount of 33 days of salary per each year the employee had been continuously employed, limited to 24 monthly salary payments. If the employee is readmitted, he will be entitled to the salaries he would have received had he not been dismissed from the date he was dismissed to the date of the employment court order declaring the dismissal unlawful or the date he found new employment.
If the employer does not proceed with either readmitting or compensating the employee, it will be deemed that the readmission has been elected.
Finally, an employee’s dismissal will be considered null if it is based on any discrimination causes prohibited by the Spanish Constitution or law or in breach of the employee’s fundamental rights and public liberties. These includes pregnancy, maternity / paternity / adoption / employee's obligations relating to the care of children or dependants.
If you would like more information, please do not hesitate contacting us.
