CDD regulados: Si

Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

Fixed-term contracts can be concluded in limited situations:
- Temporary increase in workload : When business demands are high and resources are stretched or there is backlog, even though the work maybe within the normal activity of the enterprise. In such cases, contracts can be concluded for a maximum of 6 months within a twelve-month period. In some cases, the maximum length can be up to 18 months if worker's union agreement so stipulates (art. 15(1)b) ET);
- Specific project or service: the worker is hired to undertake an autonomous and specifically delimited project or to provide service the execution of which, although limited is of uncertain duration (art. 15(1)a) ET).
- Replacement of a worker: When the contractor substitutes a worker entitled to return to work after leave (art. 15(1)c) ET).
In addition to these above-mentioned objective reasons, FTC can be concluded for the following reasons: training purposes, employment of workers with disabilities and replacement of workers on the verge of retirement. The rules governing those contracts will not be further studied here.

Número máximo de CDD consecutivos: 2

Remarks

The maximum number of FTC depends on the reason for which the contract is concluded.
- If it is concluded to address a temporary increase in workload, the fixed-term contract can be renewed only once, within the maximum duration (6 months in any 12-month period which can be extended to 12 months in any 18-month period by collective agreement) [Art. 15 (1)b) ET].
- There are no specific limitations with regard to the number of renewals of FTC concluded for other objective reasons (specific project or service, replacement).
However, art. 15(5) ET stipulates that employees who, within a 30-month period have been employed through 2 or more fixed-term contract for more than 24 months, in the same position in the same undertaking, either directly or through temporary employment agencies, shall become permanent employees.

Duración máxima acumulativa de CDD consecutivos: 24meses

Remarks

The maximum duration of FTC depends on the reason for which the contract was concluded.
- If it is concluded to address a temporary increase in workload, the maximum duration is 6 months in any 12-month period which can be extended to 12 months in any 18-month period by collective agreement [Art. 15 (1)b) ET].
- There are no specific limitations on the maximum cumulative duration of FTC concluded for other objective reasons (specific project or service, replacement).
However, art. 15(5) ET stipulates that an employee who, within a 30-month period has been employed in the same job in the same undertaking through 2 or more fixed-term contract for more than 24 months in total, either directly or through a temporary employment agency, shall become a permanent employee.

% de trabajadores bajo CDD: 25.4

Remarks

Source: Eurostat, annual average for 2009.
The figure refers to the percentage of total number of employees with contracts of limited duration (= temporary jobs). Eurostat data are based on the following definition:
"A job may be considered temporary if employer and employee agree that its end is determined by objective conditions such as a specific date, the completion of a task or the return of another employee who has been temporarily replaced (usually stated in a work contract of limited duration). Typical cases are: (a) persons with seasonal employment; (b) persons engaged by an agency or employment exchange and hired to a third party to perform a specific task (unless there is a written work contract of unlimited duration); (c) persons with specific training contracts."

Duración maxima del periodo de prueba (en meses): 6 meses

Remarks

The maximum duration of the probationary period is in accordance with the provisions of collective agreements. However, in the absence of a collective agreement, the duration of probationary period may not exceed six months for skilled technicians, or two months for other workers.
In enterprises employing fewer than 25 workers the probation period may not exceed three months for workers who are not skilled technicians (art. 14 ET).

Obligación de motivar el despido: Si

Remarks

Art. 53(1)a): written notification of dismissal stating the reasons.

Motivos autorizados (despido justificado): razones económicas, conducta del trabajador, capacidad del trabajador

Remarks

Upon expiry of the trial period, dismissal (including of a fixed term employee) shall always be justified under Spanish law. The valid grounds for termination are divided between objective causes [= worker's capacity, economic reasons] and disciplinary causes [worker's conduct]:

1) Objective causes (art. 52 ET):
* the incompetence of the employee, known to the employer or later demonstrated by the employee after joining the enterprise;
* the worker's failure to adapt to the technical modification of his or her job, if such changes is reasonable and has occurred after a minimum of two months from the introduction of the modification;
* there is a demonstrated objective need to decrease the number of jobs for economic, technical, organisational or production reasons;
* persistent absenteeism (= absence from work, even justified but intermittent, amounting to 20% of the working days in two consecutive months, or 25% in four discontinuous months within a period of 12 months, if the rate of absenteeism of the total workforce exceeds 5 per cent during the same periods) However, the following will not be considered as absenteeism: legal strikes, employees' representative activities, labour accidents, maternity leave, vacations, temporary absence from work of more than 20 consecutive days due to sickness or non-employment-related accidents, and/or physical or psychological situation due to gender violence; and
* lack of funding for public programs carried out public authorities or non-profit entities.

2) Disciplinary causes (art. 54 ET):
* repeated and unjustified absence or lateness in the workplace;
* insubordinate conduct or disobedience at work;
* verbal or physical abuse directed at the employer or the persons employed in the enterprise or the family living with them;
* breach of contractual good faith and abuse of trust in discharge of duties;
* continuous default on the amount of work carried out
* habitual drunkenness or drug addiction if it adversely affects work; and
* harassment based on race or ethnic origin, religious beliefs or conviction, disability, age or sexual orientation or sexual harassment against the employer or other persons working at the company.

Motivos prohibidos: estado civil, embarazo, licencia de maternidad, responsabilidades familiares, raza, color, sexo, orientación sexual, religión, opinion política, origen social, edad, afiliación sindical y actividades sindicales, discapacidad, licencia de adopción, origen étnico

Remarks

1) The anti-discrimination provisions of the Workers' Charter prohibit termination of employment on the basis of sex, ethnic origin, marital status, race, social status, age (within the limits established by the law), religious or political beliefs, membership or non-membership of a trade union, sexual orientation, language, disability (art. 4(2)c) ET).
Any employer's unilateral decision based on the above-mentioned grounds is considered to be null and void (17(1) ET).
In addition, according to art. 55(5) ET any disciplinary dismissal based on discriminatory grounds prohibited by the law or the constitution or in violation of the employee's fundamental rights or public freedom is null and void.
2) In addition, dismissal is null in the following circumstances: pregnancy, suspension of contract due to maternity, risk during pregnancy, or breast-feeding leave; adoption or fostering; family leave to care for children or handicapped persons; and certain circumstances in which female workers have been victims of gender violence. This is however not an absolute prohibition, since dismissal in those cases is allowed if not motivated by reason of pregnancy or the exercise of the right to the above mentioned leaves (art. 53(4) ET - dismissal for an objective cause - and art. 55(5) ET - disciplinary dismissal).

Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores

Remarks

Workers' and trade union representatives:
- According to art. 55(1) ET if the worker is a workers' legal representative or a trade union representative, there will be formal adversarial procedures during which the worker and other members of the union to which he or she belongs, may be heard. If the worker is a member of a trade union and the employer is aware of this fact, representatives of the corresponding trade union must be heard in advance.
- In addition, in the event of unfair dismissal of a workers' representative, it is up to that employee to decide whether he or she wants to be reinstated or receive compensation, as opposed to the general rule according to which the choice is made by the employer (art. 56(4) ET).
- Lastly, in the event of collective dismissal, the workers' representatives have priority for remaining in the enterprise (art. 51(7) ET).

Forma de la notificación del despido al trabajador: escrita

Remarks

- Dismissal based on objective reasons: art. 53(1)a) ET.
- Disciplinary dismissal: art. 55(1) ET.

Plazo de preaviso:

Remarks

- The notice period to be observed in the event of dismissal for an objective cause shall be 30 days (art. 53(1)c) ET). With respect to disciplinary dismissal, notice is not required.

duración de servicio ≥ 6 meses:

  • Todos: 1 meses.

duración de servicio ≥ 9 meses:

  • Todos: 1 meses.

duración de servicio ≥ 2 años:

  • Todos: 1 meses.

duración de servicio ≥ 4 años:

  • Todos: 1 meses.

duración de servicio ≥ 5 años:

  • Todos: 1 meses.

duración de servicio ≥ 10 años:

  • Todos: 1 meses.

duración de servicio ≥ 20 años:

  • Todos: 1 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

If the employer fails to observe the notice requirements, he or she shall be liable to pay compensation in an amount equivalent to the period of notice that was not given (art. 55(4) ET).

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Remarks

No general obligation to notify the worker's representatives in the event of dismissal.
However, notification is required in the following cases:
- In the event of objective dismissal based on technical, organizational, economic or production-related grounds which is not part of a pattern of collective dismissal, copy of the notice of dismissal shall be given to the worker's representatives (art. 53(1)c) ET).
- Where a trade unions member or trade union representative is dismissed by way of disciplinary dismissal (art. 55 (1) ET - see also above "worker's enjoying special protection)

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): Termination of employment contracts based on economic, technical, organizational or productive reasons within a 90 day period, affecting at least
- ten workers, in enterprises that employ fewer than 100 workers;
- 10 per cent of the number of workers in enterprises that employ between 100 and 300 workers; or
- 30 workers in enterprises that employ more than 300 workers.
Termination of employment contracts of the undertaking's entire workforce is also considered a collective dismissal provided that the number of workers affected is more than 5.

Remarks

Art. 51(1) ET.

Consultación previa con los sindicatos (representantes de los trabajadores): Si

Remarks

Art. 51 ET: An employer who intends to carry out collective dismissals must request permission from the competent labour authority and at the same time must consult the legal representative of the workers. Consultation with the legal representatives of the workers should last not less than 30 calendar days, or 15 days in the case of enterprises with fewer than 50 workers and must cover the reasons for the collective dismissal, alternatives to dismissal and measures necessary to reduce adverse effects on workers.

Notificación a la administración: Si

Remarks

Art. 51(2) ET: An employer who intends to carry out collective dismissals must request permission from the competent labour authority.

Notificación a los representantes de los trabajadores: Si

Remarks

Art. 51(2) ET.

Aprobación de la administración publica o de organismos judiciales: Si

Remarks

Art. 51 ET: An employer who intends to carry out collective dismissals must request permission from the competent labour authority.
At the end of the consultation process, the employer must communicate to the labour authority the outcome of the consultation.
- If there is an agreement between the parties, the labour authority will issue a resolution with 15 days authorizing the collective dismissal except if it determines the commission of fraud, damage, coercion or abuse of law in the conclusion of the agreement, in which case the matter is referred to a judge.
- If the negotiating parties did not reach an agreement upon expiry of the consultation period, the labour authority will issue a decision within a period of 15 calendar days approving or rejecting the employer's request for collective dismissal.
The decision of the labour authority must be justified and consistent with the request of the enterprise.

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): Si

Remarks

In the event of collective dismissal, workers' representatives will be the last to be dismissed (art. 51(7) ET).

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): Si

Remarks

The consultation process must cover measures aimed at avoiding or reducing the effects of dismissal (art. 51(4) ET).
A social plan containing those measures shall be drafted in undertakings with at least 50 workers.

Reglas de prioridad para la re-contratación: No

Indemnización por despido:

Remarks

- In the event of dismissal for an objective reason (i.e economic reasons, worker's capacity - see valid grounds), at the time the written notice of dismissal is delivered to the worker, severance pay shall be simultaneously made available to the worker. Severance pay amounts to 20 days' wages per year of service with a maximum of 12 months' wages (art. 53(1) ET).
- A worker who is dismissed for disciplinary reasons is not entitled to severance pay.
However, it is important to emphasize that in the event the employer acknowledges that the disciplinary dismissal is unfair, the employment contract will be deemed terminated at the date of dismissal if the employer deposits in advance to the Labour Court at the disposal of the employee the statutory compensation for unfair dismissal which amounts to 45 days' wages for each year of service up to a maximum of 42 months' wages (art. 56(2) ET).
-According to art. 49(1)c) ET, upon termination of a fixed term contract by expiry of the term or completion of the work, the worker is entitled to a payment of 8 day's per year of service. This does not, however, apply to termination of a contract concluded for training purposes or to replace employees temporarily absent from work (art. 49(1)c) ET).

duración de servicio ≥ 6 meses: 0.3 meses

duración de servicio ≥ 9 meses: 0.5 meses

duración de servicio ≥ 1 año: 0.7 meses

duración de servicio ≥ 4 años: 2.7 meses

duración de servicio ≥ 5 años: 3.3 meses

duración de servicio ≥ 10 años: 6.7 meses

duración de servicio ≥ 20 años: 12 meses

Indemnización por despido por razones económicas:

Remarks

In the event of dismissal for economic reasons (individual or collective), the employees are entitled to redundancy payment in an amount equivalent to 20 days' wages per year of service up to a maximum of 12 months' wages (for periods of less than a year, this is calculated in proportion to the period of service). See arts. 51(8) and 53(1) ET.
In undertakings employing fewer than 25 workers, the Wage Guarantee Fund must pay 40% of the redundancy payment (for individual and collective economic dismissals). See art. 33(8) ET.

duración de servicio ≥ 6 meses: 0.3 meses

duración de servicio ≥ 9 meses: 0.5 meses

duración de servicio ≥ 1 año: 0.7 meses

duración de servicio ≥ 2 años: 1.3 meses

duración de servicio ≥ 4 años: 2.7 meses

duración de servicio ≥ 5 años: 3.3 meses

duración de servicio ≥ 10 años: 6.7 meses

duración de servicio ≥ 20 años: 12 meses

Notas / Comentarios

Notas

1) Dismissal for an objective reason (including individual and collective dismissals for economic reasons): severance pay = 20 days' wages per year of service up to a maximum of 12 month's wages.
2) Disciplinary dismissal: no severance pay.
3) If the employer acknowledges that the disciplinary dismissal is unjustified: compensation for unfair dismissal can be paid in advance to the employee in order to avoid trial and payment of back pay. Such compensation amounts to 45 days' wages per year of service up to a maximum of 42 months' wages (see below).
4)Termination of a fixed-term contract (which is not concluded for training or substitution purposes): 8 days' wages per year of service.

Compensación por despido injustificado - libre determinación de la Corte: No

Remarks

See art. 56(1) ET.

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): - Dismissal declared unfair by the Court (a valid reason has not been given, or cannot be legally substantiated - "despido improcedente"): the employer can opt for compensation in lieu of reinstatement 45 days' wages for each year of service up to a maximum of 42 months' pay + back pay from the date of the dismissal until the judicial decision or until the the workers finds another job if that happens before the court's decision.
[Compensation for unfair dismissal is reduced to 33 days' wages per years of service up to a maximum of 24 months' wages in the event of objective dismissal subsequently declared unfair (improcedente) if the dismissed worker is under a contract for the promotion of indefinite employment ("contrato de fomento de la contratación indefinida"). Those contracts can be concluded with certain categories of unemployed individuals (i.e individuals aged 16-30, individuals over 45 years, under-represented women, disabled persons).]
- If the employer acknowledges that the dismissal is unfair and deposits compensation for unfair dismissal with the Labour Court within 2 days of the dismissal, the employee will not be entitled to back pay if the Court subsequently rules the dismissal to be unfair.
- No compensation following discriminatory dismissal or dismissal based on maternity-related grounds. In such cases the dismissal is null and void and reinstatement with back pay is the only available remedy.
- No compensation if the employer fails to observe the requirements applicable to objective dismissal (written notice indicating the reasons for dismissal and payment of severance pay): the dismissal is null and void and therefore the employee is entitled only to reinstatement with back pay.
- In the event of non-compliance with procedural requirements applicable to disciplinary dismissal, the employer may choose between reinstatement and compensation for unfair dismissal + back bay as described above.

Remarks

- On unfair dismissal, see art. 56 ET.
- On compensation for unfair dismissal for workers under a contract for the promotion of indefinite employment, (Contrato para el fomento de la contratación indefinida) see Act 12/2001 of 9 July 2001.
- On discriminatory dismissal and dismissals based on maternity-related grounds, see art. 53(4) and 55(4) ET.
- On non-compliance with the objective dismissal requirements, see art. 53(4) ET.
- On non-compliance with the procedural requirement applicable to disciplinary dismissal, see art. 55(4) ET.

Posibilidad de readmisión: Si

Remarks

- In the event of unfair dismissal ("despido improcedente"), the employer may choose between reinstating the employee or paying compensation for unfair dismissal (art. 56(1) ET).
However, if the dismissed employee is a workers' representative, the choice between reinstatement and compensation shall be made by the employee. Therefore reinstatement of a workers' representative is mandatory if so requested (art. 56(4) ET).
- Reinstatement is mandatory in the event of discriminatory dismissal or dismissal based on maternity-related grounds (art. 53(4), 55(5) and 55(6) ET).
- Similarly, failure to observe the requirements applicable to objective dismissal (written notice indicating the reasons for dismissal and payment of severance pay) will give rise to reinstatement (art. 53(4) ET).

NOTE - Labour Market Reform, enacted by Royal Decree Law 10/2010 [RDL10]:
The RDL modifies the legal effects of the failure to observe the procedural requirement applicable to objective dismissal (including redundancy). Such failure will entail the same consequence as unfair dismissal (employer's choice between reinstatement or compensation) instead of mandatory reinstatement required by the nullity of the dismissal (art. 53(4) ET modified by art. 2 RDL10).

Conciliación previa obligatoria: Si

Remarks

-Art. 63 LPL: Preliminary conciliation at the competent service of the labour administration is mandatory before the dispute can reach the labour court.
- In addition, the parties can resort to judicial conciliation at the labour court in the beginning of the proceedings, before the trial takes place, see art. 84 LPL.

Corte o Tribunal competente: tribunal del trabajo

Remarks

The Labour Courts have jurisdiction over individual labour disputes arising from the employment contract. (see the Labour Procedure Law, art. 2(a); see also the specific provisions on dismissal: art. 103- 124 LPL).
Complaints relating to both disciplinary and objective dismissal shall be lodged within 20 days of the dismissal (art. 103 and 121 LPL).
The Labour Courts system is organized as follows:
The labour courts (Juzgados de lo Social) are the court of first instance for labour disputes arising at the provincial level. The employment divisions of the higher courts (Sala de lo Social de los Tribunales Superiores de Justicia) have jurisdiction over labour disputes whose scope is greater than a province, but within a region (or autonomous community), and their judgments can be appealed. The employment division of the National Court (Sala de lo Social de la Audiencia Nacional) hears labour disputes whose scope is greater than an autonomous community. The employment division of the Supreme Court hears appeals of decisions of the employment divisions of the National Court and of the higher courts.

Arbitraje: Si

Remarks

"With respect to other ways of out-of-court [individual] conflict resolution processes, their establishment in the state and the Autonomous Communities was carried out through agreements between the most representative union and employers' organisations, establishing the type of mediation and the arbitration as procedures (some Communities also include conciliation). Therefore, since the early nineties procedures have been developed for resolving conflicts of this nature, first in the historical communities (Basque Country, Catalonia and Galicia), and then in all the others, and joint institutions were created normally consisting of a department or section in the Autonomic Administration. Similarly, since 1996 there has been the Agreement on the Extrajudicial Resolution of Labour Conflicts (Acuerdo de Solución Extrajudicial de Conflictos, ASEC) at the national level, signed this year and renewed in 2009 to last until 2012, by the UGT, CCOO (the unions), CEOE and CEPYME (the employers' organisations). This agreement opened the doors to the creation of the private foundation administered by the Interconfederal Service of Mediation and Arbitration (SIMA), financed entirely by the state, but managed autonomously by the social partners. Its services are free, just like those of the joint institutions of the communities, but they are distinguished as focusing only on collective conflicts".

Source: Pablo Sanz de Miguel and Maria Caprile, "Spain: Individual disputes at the workplace - alternative disputes resolution" available on the EIRO website at: http://www.eurofound.europa.eu/eiro/studies/tn0910039s/es0910039q.htm