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.

As from 2013, temporary contracts can be entered with young people without work experience and under 30 years of age even if the job is of a permanent nature (art. 12 Law 11/2013).

Número máximo de CDD consecutivos: 2

Remarks

The maximum number of FTC depends on the reason for which the contract was concluded.
- If it is concluded to address temporary increase in the workload, the fixed-term contract can be extended or renewed only once, within the maximum duration (6 months in any 12-month period which can be extended to 12 month in any 18-month period by collective agreement) [Art. 15 (1)b) ET].
- There are no limitations with regards to the number of renewal of FTC concluded for other objective reasons (specific project or service, replacement).

Duración máxima acumulativa de CDD consecutivos: 24meses

Remarks

The maximum duration of a single 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 used to be no specific limitations on the maximum cumulative duration of FTC concluded for other objective reasons (specific project or service, replacement).

Article 15(1)a) ET establishes a limitation on the maximum duration of fixed-term contract concluded for the performance of a specific job or service: the maximum duration is 3 years, and may be extended to 4 years by sectoral collective agreement or, alternatively, by sector-wide collective agreement. After this period has elapsed, if the worker continues providing services, he or she acquires the status of permanent employees.

With regard to cumulative duration of successive FTCs, art. 15(5) ET stipulates that an employee who, within a 30-month period has been employed in the same position in the same undertaking through 2 or more fixed-term contracts for more than 24 months in total, either directly or through a temporary employment agency, shall become a permanent employee.

As a result of the labour market reform (Law 35/2010, but already provided in the RDL 10/2010), this rule now applies to workers in different positions employed not only in the same undertaking but also in undertakings belonging to the same group.

% de trabajadores bajo CDD: 25.6

Remarks

Source: Eurostat, third trimester 2010.
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 set 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).

A maximum probationary period of one month for temporary contracts not exceeding six months is now provided by art. 14 ET ( as from the entry into force of Royal Decree Law 16/2013 ) (there used to be no specific limit for such contracts).

Probationary period for open-ended contracts in firms with fewer than 50 employees will be one year (art. 4 Royal Decree Law 3/2012).


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;
* economic, technical, organisational or production reasons justifying collective and non-collective dismissals.

As a result of the Act 35/2010 (and previously the RDL 10/2010), the law now contains a definitions of what constitute economic, technical, organisational or production reasons: these definitions have later been amended by Royal Decree Law 3/2012 (see art. 51.1 ET on collective dismissals).]
* 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% during the same periods.

Note: This 5% threshold has been set out by Law 3/2012. Royal Decree Law 10/2010 had decreased this threshold to 2.5 from the 5% level that existed prior to 2010.

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

1) 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(5) ET).

2) Royal Decree-Law 3/2012 has introduced the possibility to establish other priority rules through collective agreements, in order to protect people with family responsibilities, people with disabilities or people above certain age in case of collective dismissal (art. 51(5) 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

As a result of Law Act 35/2010, the notice period to be observed in the event of dismissal for an objective cause (e.g economic reasons, capacity-related reasons - see 'valid grounds') is now reduced to 15 days (instead of 30 days) (see art. 53(1)c) ET).
With respect to disciplinary dismissal, no notice is required.

duración de servicio ≥ 6 meses:

  • Todos: 0.5 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0.5 meses.

duración de servicio ≥ 2 años:

  • Todos: 0.5 meses.

duración de servicio ≥ 4 años:

  • Todos: 0.5 meses.

duración de servicio ≥ 5 años:

  • Todos: 0.5 meses.

duración de servicio ≥ 10 años:

  • Todos: 0.5 meses.

duración de servicio ≥ 20 años:

  • Todos: 0.5 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

As a result of law 35/2010, 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. 53(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): Art 51(1) ET:
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.
Law 35/2010 (labour market reform) amended art. 51(1) ET by introducing a definition of economic, technical and organizational and reasons linked to production.

Economic reasons can arise, for instance, when the company demonstrates economic difficulties, in situations such as current or anticipated losses, or a persistent decline in the company's revenues or - as from Royal Decree Law 3/2012 - sales . The same Royal Decree further amended art 51(1) ET specifying that a "persisting decline" arises when a decline in revenues or sales occurs for three consecutive quarters (compared to the previous year's correspondent quarters),

The Labour Market Reform did not however modify the definition of collective dismissal with respect to the number of employees concerned.

Art 51(2) and (4) ET

Royal Decree Law 11/2013 provided for a maximum number (13) of members per party for each negotiating committee and the obligation on the employers' side to provide for accounting and fiscal documentation in addition to the other information (e.g. causes of dismissal, number of employees, number of envisaged redundancies) already to be provided.

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

Remarks

Art. 51 ET: An employer who intends to carry out collective dismissals must consult the legal representative of the workers. Consultation with the legal representatives of the workers should not last more 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 notify 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: No

Remarks

Art. 51 ET.
As from Royal Decree Law 3/2012, approval of public authorities is no longer needed to carry out a collective dismissal.

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. However, as a result of Royal Decree Law 3/2012, it will be also possible to establish other priority rules through collective agreements, such as for people with family responsibilities, disabilities or people above certain age (art. 51(5) ET).

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

Remarks

Art 51 ET and Royal Decree 1483/2012 of 29 October 2012.

The consultation process must cover measures aimed at avoiding or reducing the effects of dismissal (art. 51(2) ET).

Since 2012, art. 51(2) includes examples of such measures; it now expressly refers to redeployment, training and re-training.

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.

Before 2012, if the employer acknowledged that the disciplinary dismissal was unfair, the employment contract would 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 (former art. 56(2) ET). This provision was repealed by Royal Decree Law 3/2012. Now, when a dismissal is declared unfair by the Court, the statutory compensation amounts to 33 days’ wages for each year of service up to a maximum of 24 months’ wages (current art. 56(1) 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 severance payment.
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).

As a result of Royal Decree Law 16/2010, the amount of fixed-term contract termination indemnity, which was previously 8 days for each of service, is now 12 days per year of service (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(4) and 53(1) 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) Termination of a fixed-term contract (which is not concluded for training or substitution purposes): 12 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):

Remarks

Dismissal declared unfair by the Court (a valid reason has not been given, or cannot be legally substantiated - "despido improcedente"): as from Royal Decree Law 3/2012 the employer can opt for compensation in lieu of reinstatement; 33 days' wages for each year of service up to a maximum of 24 months' pay. If the employer opts for reinstatement, he will have to provide for back pay from the date of the dismissal until the judicial decision or until the worker finds another job if that happens before the court's decision.

Remarks:
- On unfair dismissal, see art. 56 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.

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 starts, 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." This agreement was renewed in 2012 by the V Agreement on the Autonomous Resolution of Labour Conflicts – Extrajudicial System (V Acuerdo sobre solución autónoma de conflictos laborales – Sistema Extrajudicial).


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