CDD regulados: Si

Remarks

Arts. 12 LC, arts. 82-87 LC.(former Arts. 80-86)

Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

Art. 83 LC(former art. 81), as amended in 2011 provides that FTC can only be concluded in the following instances:
a) replacement of an employee when his/her work contract has been suspended, unless that employee participates in a strike;
b) temporary increase and/or modification of the employer's work structure. [previously: temporary increase of the employer's activity];
c) performance of a seasonal activity;
d) when it has been concluded under legal provisions issued in order to temporarily benefit certain categories of unemployed persons;
d1) employment of a person who, within 5 years from the date of employment, fulfils the old age retirement conditions;
d2) filling in an elective position within trade unions, employers' organizations or non-governmental organizations, during the mandate;
d3) employment of retired persons who, under the terms of the law, may cumulate the retirement benefit with the wage;
e) in other cases explicitly provided in special laws or for the development of works, projects or programmes. [previously: in other cases expressly provided for in special laws or for the achievement of works, projects, programs, under the terms established in the collective work agreement concluded at national level and/or at branch level.]

Número máximo de CDD consecutivos: 3

Remarks

NEW:
Art. 82(3),(4), (5) LC (former art. 80(3), (4),(5)) as amended in 2011:
(3) The individual fixed term employment contract can be also extended in circumstances provided in art. 81 after the initial deadline expires, with the parts written agreement during the time period of developing a project, programme or work.
(4) The same parts can sign successively no more than 3 individual employment contracts on fixed term.
(5) The individual employment contracts on fixed term concluded within 3 months from the termination of an employment contract on fixed term are considered successive contracts and cannot be longer than 12 months each.

Duración máxima acumulativa de CDD consecutivos: 36meses

Remarks

Art. 82 LC (former art. 80), as amended

The maximum cumulative duration of fixed-term employment contract has increased from 24 to 36 months. However this 36 month period can be extended, for the motives related to the developing of a project, programme or works, subject to the parties' written consent. (Art. 82.3 LC)

% de trabajadores bajo CDD: 1.5

Remarks

Source: Eurostat, annual average for 2011.
The figure refers to the percentage of employee with a contract of limited duration (= temporary job) of total number of employee aged 15-74 years.
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): 3 meses

Remarks

NEW:
Art. 31 LC, has been amended in March 2011, as follows:
- maximum 90 days for operational positions [previously: 30 days];
- maximum 120 days for managerial positions for operational positions [previously: 90 days];

With regard to the specific rules applicable to certain categories of workers, the following changes took place:
- persons with disabilities: maximum 30 days (unchanged);
- higher-education graduates: the new provision now provides that the first 6 months of work are considered internship (and not any more a probationary period).
- unskilled workers: that maximum probationary period of 5 days for unskilled workers previously provided by art. 31(3) LC has now been removed from that provision.
During or at the end of the probation period, either party can terminate the employment contract by a written notification with no previous notice and no justification is needed for it.

- Art. 85 LC (former Art. 83) establishes statutory probationary periods for employees hired under a fixed-term contract, as follows:
- 5 working days, for a FTC of less than 3 months;
- 15 working days, for a FTC between 3 and 6 months;
- 30 working days, for a FTC exceeding 6 months;
- 45 working days, in the case of employees holding management positions, hired under a FTC for more than 6 months.

Obligación de motivar el despido: Si

Remarks

- Dismissal related to the employee's (subjective reasons):
the decision shall be issued in writing and shall specify the grounds for dismissal (art. 62 LC).
- Dismissal not related to the employees' person (objective reasons): obligation to indicate the reason leading to the dismissal in the dismissal decision: art. 72 LC(former art. 74).

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

Remarks

- Under the LC, a dismissal may be ordered for reasons related to the person of the employee or for reasons not related to the employee (art. 58(2) LC).
- Art. 61 LC provides for an exhaustive list of valid reasons which related to the person of the employee (subjective reasons). These are: serious or repeated disciplinary offences, preventive custody for more than 30 days, established physical or mental incapacity, professional inadequacy, meeting of retirement conditions and not applying for it .
- Art. 65 LC allows terminations of an individual employment contract caused by the suppression of the employee's positions, for one or several reasons not connected to employee's person as long as the elimination of the employee's position is effective and has a real and serious cause.
Such dismissals are either individual or collective.

Motivos prohibidos: estado civil, embarazo, licencia de maternidad, responsabilidades familiares, enfermedad o accidente profesional temporal, raza, color, sexo, orientación sexual, religión, opinion política, origen social, nacionalidad, edad, afiliación sindical y actividades sindicales, cumplimiento del servicio militar o civil, licencia paternal, participación en una huelga legal, información genética, origen étnico

Remarks

- Art. 59 LC prohibits dismissal on the following grounds:
a) criteria such as gender, sexual orientation, genetic characteristics, age, national origin, race, colour of the skin, ethnic origin, religion, political option, social origin, disability, family status or responsibility, trade union membership or activity;
b) the exercise, under the terms of the law, of their right to strike and trade union rights.

In addition, art. 60 LC prohibits the employer from dismissing an employee in the following cases:
- for the duration of a temporary disability (i.e illness), as certified by a medical certificate;
- for the duration of the quarantine leave;
- during the pregnancy of an employee, insofar as the employer took knowledge of it prior to issuing the dismissal decision;
- during the maternity leave;
- during the parental leave for children under two years of age or, in the case of a disabled child, up to the age of three years;
- during the parental leave for children under seven years of age or in the case of a disabled child, for intercurrent diseases, up to the age of eighteen years;
- during the compulsory military service;
- during the exercise of an elective office in a trade union, except for the case where the dismissal is decided for serious or repeated disciplinary offences of that employee;
- during the annual leave.
This prohibition does not apply in the case of dismissal due to reasons related to the legal reorganization or bankruptcy of the employer.

Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad, trabajadores con responsabilidades familiares, trabajadores con licencia temporal por enfermedad

Remarks

Art. 60 LC prohibits the employer from dismissing an employee in the following cases:
- for the duration of a temporary disability (i.e illness), as certified by a medical certificate;
- during the suspension of work activity following the lay of quarantine (as modified by Act No. 40/2111);
- during the pregnancy of an employee, insofar as the employer took knowledge of it prior to issuing the dismissal decision;
- during the maternity leave;
- during the parental leave for children under two years of age or, in the case of a disabled child, up to the age of three years;
- during the parental leave for children under seven years of age or in the case of a disabled child, for intercurrent diseases, up to the age of eighteen years;
- during the exercise of an elective office in a trade union, except for the case where the dismissal is decided for serious or repeated disciplinary offences of that employee;
- during the annual leave.
[NEW: Act No. 40/2011 removed from art. 60(1) LC the prohibition of dismissal during the compulsory military service]
These prohibitions do not apply in case of redundancies for reasons that result from the employer's re-organisation, bankruptcy or winding up according to law. (art. 60(2) LC, as amended by Act No. 40/2011)
The prohibition of dismissal concerning employee's representatives is further specified in arts. 220(2) and 226 LC. According to these provisions, the representatives elected in the trade union management bodies may not be dismissed during their term of office and two years after its end, for reasons not related to the person of the employee, for professional unfitness or reasons related to the fulfilment of the mandate received from the employees in the organization (art. 226) LC)
The same prohibition applies to the employees' representatives during their entire mandate period (art. 226 LC)

Forma de la notificación del despido al trabajador: escrita

Remarks

- Dismissal for objective reasons: art. 62 LC (on disciplinary dismissal, see also art. 268 on the procedural requirements applicable to disciplinary dismissals).
- Dismissal for subjective reasons:art. 74 LC.

Plazo de preaviso:

Remarks

See art. 75 LC (former art. 73), as amended by Act No. 40/2011:
NEW: When the dismissal is based on the following grounds:
- physical or mental inability to work;
- professional inadequacy;
- redundancy (objective reasons);
the employees shall now have the right to a notice of at least 20 working days [instead of 15 days previously].
This does not apply to the dismissal of worker under a probationary period, when the dismissal is based on professional inadequacy.
No notice shall be observed when the dismissal is based on disciplinary grounds.

duración de servicio ≥ 6 meses:

  • Todos: 0.67 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0.67 meses.

duración de servicio ≥ 2 años:

  • Todos: 0.67 meses.

duración de servicio ≥ 4 años:

  • Todos: 0.67 meses.

duración de servicio ≥ 5 años:

  • Todos: 0.67 meses.

duración de servicio ≥ 10 años:

  • Todos: 0.67 meses.

duración de servicio ≥ 20 años:

  • Todos: 0.67 meses.

Indemnización sustitutiva de preaviso: No

Notificación a la administración: No

Remarks

No general obligation to notify the administration.
However, notification is requested in some specific cases as provided by art. 64 LC:
Before carrying out a dismissal based on professional inadequacy or on mental or physical disability, the employer must offer the employee other vacant positions within the company, which are compatible with his/her professional background or, with the work capacity, as established by the occupational health doctor. When no such vacancy is available, the employer must inform the competent territorial employment agency an request its support for redeploying the employee.

Notificación a los representantes de los trabajadores: No

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): Dismissal within a 30-day period for one or several reasons not related to employee's person, concerning at least:
- 10 employees in undertakings with more than 20 employees, but less than 100 employees;
- 10% of the employees in undertakings with at least 100 employees, but less than 300 employees;
- 30 employees in undertakings with at least 300 employees.
When establishing the actual number of employees under collective redundancy, the employees whose individual employment contracts ceased on employer's initiative, on one or several reasons not related to employee's person, shall also be taken into account, provided that at least five dismissals exist

Remarks

Art. 68 LC.

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

Remarks

Art. 69 LC:
"(1) When the employer contemplates a collective redundancy, it shall initiate, in good time and with a view to reaching an agreement, under the terms provided for in the law, consultations with the trade union or, as the case may be, with the representatives of the employees, at least on the following issues:
a) methods and means to avoid the collective redundancies or to reduce the number of employees to be dismissed;
b) mitigation of the collective redundancy consequences by relying on social measures aiming, among others, at the vocational training or retraining of the dismissed employees.
(2) During the consultations, according to paragraph (1), with a view to allowing the trade union or the representatives of the employees to draft proposals in good time, the employer shall provide all relevant information and notify them in writing of the following:
a) the total number and categories of employees;
b) the reasons leading to the considered collective redundancy;
c) the number and categories of employees to be affected by dismissal;
d) the criteria taken into account, according to the law and/or collective labour agreements, for ranking the dismissals;
e) the measures considered with a view to limiting the number of dismissals;
f) the measures to reduce the consequences of the collective redundancy and the compensations to be granted the dismissed employees, according to the legal provisions and/or the applicable collective labour agreement;
g) the starting date or the period of the dismissals;
h) the deadline for the proposals of the trade union or, as the case may be, of the representatives of the employees, to avoid or reduce the number of dismissed employees."

Notificación a la administración: Si

Remarks

- Art. 70 LC: a copy of the notification sent to the trade union during the consultation process containing the required information (e.g., number and categories of employee concerned, reasons for the collective redundancy, the selection criteria, measures considered with a view to limiting the number of dismissals and to reducing their consequences, redundancy pay..) shall be sent the territorial labour inspectorate and the local public employment office on the same date it has been forwarded to the trade union.
- In addition, art.72-1 LC (former 71-1 LC) provides that when, following the consultation process the employer decides to apply the collective redundancy measure, he/she shall notify in writing the territorial labour inspectorate and the local public employment office, at least 30 calendar days before issuing the dismissal decisions.
The notification shall include all relevant information concerning the intended collective redundancy and the outcome of the consultations with the trade union or the representatives of the employees, in particular the reasons of the dismissals, the total number of employees, the number of employees affected by dismissal and the starting date or the period of the dismissals.

Notificación a los representantes de los trabajadores: Si

Remarks

Art. 69(2) LC: During the consultations, with a view to allowing the trade union or the representatives of the employees to draft proposals in good time, the employer shall provide all relevant information and notify them in writing of the following:
a) the total number and categories of employees;
b) the reasons leading to the considered collective redundancy;
c) the number and categories of employees to be affected by dismissal;
d) the criteria taken into account, according to the law and/or collective labour agreements, for ranking the dismissals;
e) the measures considered with a view to limiting the number of dismissals;
f) the measures to reduce the consequences of the collective redundancy and the compensations to be granted the dismissed employees, according to the legal provisions and/or the applicable collective labour agreement;
g) the starting date or the period of the dismissals;
h) the deadline for the proposals of the trade union or, as the case may be, of the representatives of the employees, to avoid or reduce the number of dismissed employees.
- In addition, art. 72-1 LC (former 71-1(3) LC) provides that a copy of the notification sent to the territorial labour inspectorate and the local public employment office, at least 30 calendar days before issuing the dismissal decisions, shall also be forwarded on the same date to the trade union or the representatives of the employees.

Aprobación de la administración publica o de organismos judiciales: No

Remarks

The LC does not require the approval of the collective redundancy by the administration. The administration can, however, decide to increase or reduce the timeframe for issuing the dismissal decision according to art. 72 (former art. 71) which read as follows:

Art. 72 LC [notification of collective redundancy]:
"(5) At the reasoned request of any party, the territorial labour inspectorate, after receiving the opinion of the local public employment office, may order the reduction of the period provided for in paragraph (1), without prejudice to the individual rights concerning the notice period.
(6) The local labour inspector has the obligation to inform the employer and the trade union or the workersu00bf representatives, as the case may be, on the decrease or extension of the time period provided at para (1) no later than 3 days, as well as about the reasons on which such decision was based (as modified by art. 36 of Act 40/2011)"

- Art. 73 LC (former art. 71-2 LC) [postponement of collective redundancy]
"(1) [During the 30-day period following the post - consultation notification], the local public employment office shall explore solutions for the issues raised by the intended collective redundancy and notify them in good time to the employer and the trade union or, as the case may be, the representatives of the employees.
(2) At the reasoned request of any party, the territorial labour inspectorate, after consulting the local public employment office, may order the postponement of the decision with maximum 10 calendar days, in case the issues related to the collective redundancy envisaged may not be solved within the deadline set in the collective redundancy notification provided for in Article 72-1 [max. 30 days] as the date of the dismissal decisions.
(3) The territorial labour inspectorate shall notify in writing the employer and the trade union or the representatives of the employees, as the case may be, of the postponement of the dismissal decisions, and of the reasons of such decision, before the end of the original period provided for in Article 72-1[max. 30 days]."

Acuerdo de los representantes de los trabajadores: No

Remarks

Art. 69(1) only provides that consultations shall be undertaken with a view to reaching an agreement but no approval is required.
Art. 71-1(3) LC allows the trade union forward their potential opinions to the territorial labour inspectorate following the post-consultation notification , at least 30 days before the dismissal decisions are issued.

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

Remarks

Art. 69(2)(d) LC provides that the employer's notification on collective dismissal to the trade union should indicate "the criteria taken into account, according to the law and/or collective labour agreements, for ranking the dismissals".
NEW: The Act No. 40/2011 introduced a new parapgraph 2-1 to art. 69 which provides that the "Criteria provided in para (2) letter d) apply to select the workers after the assessment of the performance objective fulfillment". Therefore, performance shall be the first criterion used in order to select the employees to be made redundant.

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

Remarks

Art. 69(1) LC: Consultations with the trade union or with the representatives of the employees shall cover at least: - methods and means to avoid the collective redundancies or to reduce the number of employees to be dismissed and;
- mitigation of the collective redundancy consequences by relying on social measures aiming, among others, at the vocational training or retraining of the dismissed employees.
See also art. 71 LC:
"(1) The trade union or, as the case may be, the representatives of the employees, may propose the employer measures to avoid the dismissals or to reduce the number of dismissed employees, within 10 calendar days after receiving the notification.
(2) The employer shall give a written and grounded answer to the proposals prepared according to the provisions of paragraph (1), within five calendar days from their reception".

Reglas de prioridad para la re-contratación: Si

Remarks

The provision of the LC regulated priority for re-employment has been modifed by Act No. 40/2011.
In particular the period during which the dismissed employees have the right to be re-employed has been reduced from 9 months to 45 days. In addition, the amendment removed the prohibition on employers to hire new staff within that timeframe.


Art. 74 (former art. 72) LC now reads as follows:
(1) Within 45 calendar days from the redundancy, the worker made redundant by collective redundancy has the right to be reemployed with priority on the reset position in the same work activity without an exam, contest or probation time.
(2) In the case in which during the time period provided in para (1) the same work activities are resumed, the employer shall send to the workers who were made redundant from the position whose activity is resumed in the same conditions of professional competence a written notification to inform them on resuming the work activity.
(3) The workers have at their disposal a term of 5 calendar days starting from the employer's notification provided for in para (2) to give in their written consent on the offered work place.
(4) In the case in which the workers who have the right to be reemployed according to para (2) do not give in their written consent in the terms provided at para (3) or refuse the offered work place, the employer can make new hiring on the vacant work places. [...]"

Notas / Comentarios

Notas

NEW: Following the enactment of the Act No. 40/2011, public employees and fixed-term workers are now expressly excluded from the rules regulating collective redundancy (definition, consultation process, notification)

Compensación por despido injustificado - libre determinación de la Corte: Si

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): If the dismissal was not well-founded or illegal, the court must invalidate it and order the employer to pay an indemnity equal to the indexed, increased or updated wages and the other entitlements the employee would have otherwise benefited from.

Remarks

Art. 80(1) (former art. 78(1)) LC.
Note that art. 78 (former art. 76) LC stipulates that a dismissal decision infringing the procedure provided for in the law shall be null and void.

Posibilidad de readmisión: Si

Remarks

Art. 80(2) (former Art. 78.2) LC provides that the court may order reinstatement only if expressly requested by the employee.
The Act No. 40/2011 added a new paragraph to art. 80 LC which reads as follows: "(3) In the case in which the worker does not demand restoring the situation before the redundancy act was issued, the individual employment contract shall rightfully end at the date the court decision remains definitive and irrevocable".

Conciliación previa obligatoria: Si

Remarks

On the first hearing, the court is obliged to attempt to settle the dispute by conciliation (art. 76 of the Law no. 168/1999 regarding labour disputes resolution).

Corte o Tribunal competente: tribunal del trabajo

Remarks

Based on Law No. 304/2004, specialised sections or panels for settling cases regarding labour disputes and social insurance were established at the tribunals and the courts of appeal.
(The jurisdiction of those sections/panels cover dismissal cases - see art. 281 LC and Act No. 168/1999 on labour disputes resolutions)

Arbitraje: No

Remarks

The Law no. 168/1999 regarding labour disputes resolution only provides for arbitration as a mean of settlement of conflicts of interests (which do not cover dismissal cases). Dismissal cases which fall within the category of conflicts of rights are settled by the courts.

Duración del procedimiento: 10du00eda(s) (statutory)

Remarks

Cases regarding labour disputes falling within the category of conflicts of rights (which cover dismissal cases) must be adjudicated according to urgent proceedings which may not exceed 10 days. Appeals against the court's decision can be lodged within 10 days form the date of the communication of the decision to the parties (arts. 74 and 80 of the Law No. 168/1999 regarding labour disputes resolution)