Are you interested in learning more about the various layers of employment law in Spain? When you are starting a business, buying a business, or want to put someone on the payroll, it is good to learn more about the employment laws in Spain.
Spanish workers have solid protective measures that provide their workplace safety and well-being. Contractual obligations, maximum work hours, social security, minimum pay, paid holidays, and wage payouts are parts of Spain’s employment law. This is why our employment lawyers in Spain are ready to assist you. This article will discuss the basics of Spanish employment law and associated topics.
Definition of a contract of employment
The three components of an employment contract are as follows. In the first place, there is an assurance on the part of the employee to undertake specific tasks. The key element here is that the individual will be personally obligated to the employer (i.e., he must carry out the activities himself and may not delegate them to another without his permission).
Secondly, there is an obligation on the employer’s part to pay the employee’s salary. This can be in the form of a fixed salary or may reflect the number of hours worked. The compensation can also include a bonus, benefits, a payment in another way, or a combination of the three.
Thirdly, a relationship of subordination by which the employer is entitled to give the employee instructions which the latter must follow. If the employee fails to follow these, he will breach the contract and be liable for such penalties as dismissal.
If all three components exist, the parties will be deemed to have an employment contract.
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Employment contract forms
In general, Spanish employment legislation permits contractors significant leeway in employment contract creation. Oral or written employment contracts are allowed. During the term of a verbal agreement, either party may demand that it be written down.
There are some exceptions to this including. For example, when you put a temporary or part-time contract in place, it needs to be in writing.
Temporary employment contracts
Contracts of employment may be entered into for a temporary or indefinite period. An employment contract for a temporary period in principle terminates by operation of law upon the expiry of that period. The duration of a contract of employment for a temporary period is thus fixed in advance. The duration of a contract for an indefinite period, on the other hand, is not.
Part-time contracts are contracts of employment with a working schedule of less than the normal full working week established by law or collective bargaining agreement. They may be written or oral. The duration is typically short-term (less than six months).
The minimum length for part-time contracts is two weeks, but this is flexible in the case of seasonal work. Part-time contracts do not preclude full-time contracts.
Fixed-term employment contracts
Fixed-term employment contracts are similar to temporary employment contracts in that they terminate by operation of law at the end of the fixed period. Where, however, there is no express provision for termination on the expiry of the contract, it is deemed to be indefinite.
Fixed-term contracts may only be entered into for a specific purpose, and additional rules apply when the contract is for work of a temporary nature.
The main difference between short-term contracts and fixed-term contracts is that an employer must have a justifiable cause to enter into a contract for a predetermined period. Instead, this is not necessary for shorter employment agreements intended for a specific job or project.
Worker Rights in Spain
Worker rights in Spain are extensive. They are established by law and fall into two categories, statutory rights, which are guaranteed by statute, and rights arising from the collective bargaining agreements, which apply to different sectors of activity. Spain is a member of the International Labor Organization (ILO) and ratified the main ILO Conventions on workers’ freedom of association and right to organize and right to bargain collectively. These Conventions and the Law guarantee workers’ rights in Spain.
Work hours under Spain employment legislation
Many people have certain thoughts about the working hours in Spain. Some people think that Spanish people work hard until late, while others think they work less and rest more. The truth is that Spanish working hours are becoming more similar to Western Europe’s working hours.
According to a poll, around 60% of Spaniards never take a siesta, while just 18% admit to resting for a time in the middle of the day. When the company has implemented a siesta time (which is not common in major cities but still happens in some rural areas) the typical Spanish working day lasts approximately from 9 a.m. to 1:30 p.m., followed by 5 p.m. to 8 p.m. Normal working hours in Spain are from 9 a.m. to 6:00 p.m-6:30 p.m. Traditionally, Spaniards take a long lunch which can be 1 to 2 hours.
Employees under the age of 18 are limited to working eight hours per day, while those over the age of 18 may work up to nine hours each day (not including commute time). This limit applies to both full-time and part-time workers.
Full-time employment is limited to a maximum of 40 hours per week on an annual basis. On average, people that work in Spain work around 36 hours.
Part-time employment in Spain is limited to a maximum of 30 hours per week on an annual basis.
Other rules that are related to working hours
- Twelve hours must pass between the conclusion of one workday and the onset of the next.
- You are entitled to a 15-minute recess after working continuously for six hours in a working day.
- Your employer in Spain should give you at least one and a half days of rest every week, and this is usually Saturday and Sunday.
- If your employer wants you to work more than nine hours a day, you must agree to the extra hours.
- You cannot work more than 80 hours of overtime per year. This does not include overtime compensated with rest time or work carried out to prevent or repair extraordinary and urgent damage.
- Overtime at night is illegal with very few exceptions.
Wages and salaries in Spain
The minimum wage in Spain is one of the lowest in Europe (€1.080 per month, since January 2023).
Salary rules in Spain are based on the principle of equal pay for work of equal value. With the exception of where a worker is employed based on their qualifications and experience. This means that your salary will be dependent on your job level and any additional skills you bring to the company.
In Spain, the minimum wage (SMI or Salario Mínimo Interprofesional) applies to everyone, regardless of age, gender, or employment contract.
The Spanish government adjusts the minimum wage on an annual basis based on several criteria, including national productivity, employment levels, sustainability, and economic growth.
Paid and unpaid leave
Each year, Spain has 14 public holidays. Two of these variations are dependent on the location of the community. Employees in most cases are entitled to at least 30 days of paid vacation each year unless a labor contract or agreement has been negotiated. August is the most popular month for vacations, although they may also be taken in July or September
The following are the national, religious and public holidays (bank holidays) in Spain:
- 1st January: New Year
- 6th January: Epiphany
- Good Friday and Easter Monday: Either late March or early April
- 1st May: Labour Day
- 15th August: Day of the Assumption
- 12th October: National Holiday of Spain
- 1st November: All Saints Day
- 6th December: Spanish Constitution Day
- 8th December: Immaculate Conception
- 25th December: Christmas Day
Sick pay in Spain
In Spain, the sick pay allowance is available for a maximum of 365 days, with an option to extend it another 180 days if you expect to get well during that time.
An allowance of 60% of your salary is given by the social security office from day 4 to day 20 of the sick leave. An allowance of 75% of your salary is given from day 21 onwards.
To obtain sick pay, the employee must have a medical examination by a doctor from the Servicio Público de Salud (State Health Services).
When you are employed by a company, your employer will be in charge of applying for sick leave. They will cover the costs of the first fifteen days. After that, the social security office will take over the payment.
Maternity and Paternity leave
The right to maternity and paternity leave is an important employment law in Spain. New parents in Spain (as well as surrogates and adoptive parents) have the right to 16 weeks of maternity and paternity leave in Spain.
If a mother wants to take more maternity leave beyond the 16 weeks, she has two alternatives: a reduction in shift duration until the kid is twelve years old, which will result in a pay cut dependent on the proportion of hours worked, or an “excedencia por maternidad”. That special maternity leave is an unpaid parental leave, usually for up to three years. Your employer must keep you on during this time, but they are not required to give you your previous job after one year.
The first six weeks following the birth of a kid must be observed by both parents; after this time, each parent may take care of him or her in any way he or she wishes until the baby is one year old.
The mother who is carrying can also take maternity leave beginning at 36 weeks; if her work puts her pregnancy in danger, she might be able to go earlier with a doctor’s approval.
To be eligible, the parent must be registered in the social security office and have paid into Social Security for at least 180 days during the previous seven years or 360 days throughout their working life. The parent will have the right to 100% of their wages.
Protection from workplace discrimination
Throughout employment, discrimination is not tolerated by Spanish law. This includes discrimination on racial or ethnic origin, religion or belief, disability, age, or sexual orientation.
Direct discrimination, indirect discrimination, harassment, and victimization are all examples of unlawful employment practices.
Even if the employer is unaware of an employee’s conduct, they may become responsible for any unlawful actions carried out by that person during their employment. The employer can only limit their responsibility if they show that they had implemented all feasible measures to avoid what happened.
The employment law in Spain does allow positive discrimination is legal in Spain (for example, imposing a constraint requiring the number of female workers to exceed a certain proportion).
Protection from sexual harassment
Both sexual harassment and harassment on the grounds of sex will constitute discrimination in all circumstances.
Employers are responsible for paying accurate and adequate compensation in proportion to the harm caused.
Employers are required to provide equal treatment and opportunities for all genders and variations in sexual orientation. To do so, they must implement strategies to prevent any type of sex-based workplace discrimination.
Health and safety representation
Safety and health representatives should be in place in Spain at all businesses with more than five employees. Current employee representatives choose them. More prominent corporations (50 or more workers) participate in employer-based health and safety committees.
It’s possible to create a joint health and safety committee that covers all of the business’s locations. However, this is dependent on the employer and staff agreeing on terms, which determine the authority of this combined body.
The health and safety representatives have a variety of tasks such as.
- Working with management to enhance risk prevention action
- Encourage and promote employee participation in health and safety laws.
- Ensure that the company’s safety and health standards are met.
They also have certain rights such as the right to talk to employees about safety, receive information from health and safety professionals, and the right to encourage the employer to take action on health and safety issues.
Training and development
One of the social security benefits in Spain is vocational training. The vocational training is for both companies and workers in Spain. It is an initiative that helps them work together to create jobs. Both the central government, the autonomous communities, leading business associations, and trade union organizations all work together to help train people and get them better jobs.
The amount of this training credit will depend on the amount of the vocational training contributions paid in by each company in the previous year. Companies shall contribute with their resources to the financing of their workers’ training with a variable percentage of 5% (for companies with between 6 and 9 employees), 10% (10 to 49 employees), 20% (50 to 249 employees) or up to 40% (250 or more employees).
Making a complaint as a worker in Spain
What can you do if you feel your rights as a worker in Spain have been breached? It depends on the circumstances, but some options may include: filing a formal complaint to human resources or management and filing an official claim at the labor inspector’s office.
When the latter is chosen, the labor inspector will investigate the matter, and they will issue a court order if they feel you were in the wrong.
If management imposes disciplinary measures on you, it is possible to file a claim with the Spanish Labour Court. If your claim is accepted, it may result in reinstating your employment or compensation.
When you want to make a complaint as a worker in Spain, and you want advice on employment legislation, you should contact an employment lawyer to assist you.
Social Security and Tax in Spain
Both employees and companies employing are obligated to pay taxes such as social security contributions.
While depending on the contract, employees generally pay 6.35%, and employers pay 29.90% (January 2021). Next, employers pay a variable rate for occupational accidents (for example, they pay 1.5% for office work).
The general contribution rates as of January 2021 are 6.35% for employees, depending on the type of contract, and 29.90% for employers, plus a variable rate for occupational accidents (e.g. 1.5% for office work).
Termination and notice period
A termination must be based on one of the causes outlined in the Spanish Workers Statute. The employer needs to make sure unfair dismissal does not occur.
When an employer decides to fire a worker, strict formalities must be followed. These include a dismissal letter, notice period, and salary liquidation.
No notice period is required in case of disciplinary dismissal. Disciplinary dismissals include misconduct, lack of necessary licenses, failure to attend work without permission, contract violations, and substance abuse that affects the employee’s work. There are many more reasons for disciplinary dismissal. We suggest speaking to a lawyer if you are unsure about your situation.
An objective termination is one based on objective grounds. Objective grounds include redundancy, organization changes, and restrictions in the company (e.g. closing a department and dismissing all employees working there), re-organizing activities, ending of contracts by both parties and other objective reasons for employees to be let go.
A termination letter can communicate reasons for objective termination, but the employer should have ample proof that these reasons are valid. The employee may dispute dismissal through labor court if they disagree with the reason for being let go.
Termination by resignation or by expiration of a temporary employment contract is straightforward and does not pose complex issues under employment law in Spain.
The unemployment benefit the employee receives when they lose their job depends on the length of employment.
To qualify for unemployment benefits in Spain, they must have worked and paid Social Security contributions for a minimum of one year (360 days).
For the first 180 days of unemployment, they will get 70% of that average and then 50%.
The amount of unemployment compensation they receive is calculated by comparing their past earnings (not including overtime) to the average salary for which they made contributions during the previous six months.
The employee must be unemployed when they submit their application. They will remain unemployed during the period in which the claim is processed, and they must continue to meet the requirements for receiving benefits.
If there are no contributory requirements to qualify, workers are entitled to severance pay of two days’ wages per year worked, up to a maximum of 12.
There are several causes for which unemployment benefits may be taken away:
- Rejecting a job.
- Working for another person or being self-employed while receiving unemployment benefit.
- Failing to submit a new employment request with the Spanish State Employment Service on time.
- Failure to visit the collaborating recruitment agencies, as well as failure to submit the certificate of having done so.
- Failure to participate in social collaboration activities, job opportunities, or career advancement.
The sources of employment law in Spain
Employment law in Spain is the branch of Spanish Law that regulates the relations between the employer and the workers and the activity of unions and the action of the State, especially in matters of Social Security in Spain.
The sources of Spanish Labor Law are the Constitution, international treaties, Community Law, Laws and regulations, Collective Agreements, labor customs as well as other supplementary sources. Those with the lowest rank expand or improve the rights of workers considered as a minimum in the higher rank standards.
The Spanish labor laws have a retroactive nature, this means that they apply to relationships that are carried out from the appearance of the norm and also those that existed before them.
The Constitution, as the supreme norm of the Spanish State, includes a series of precepts of a labor nature as well as general principles with application in the field of work. Among the provisions of a labor nature, it is worth highlighting:
- 28.1: Includes the right to organize.
- 28.2: Includes the right to strike, extended by RD-L 7/1977, on labor relations.
- 35: Right and duty to work and to sufficient salary.
- 37: Right to collective bargaining and to take collective conflict measures by workers (and employers)
- 149.1.7º: The State has exclusive competence over labor legislation; without prejudice to its execution by the bodies of the Autonomous Communities.
- 7: Trade unions as organizations for the defense and promotion of the labor and social interests of workers.
- 1: Spain is a social State.
On Freedom of Association:
Law 3/2007: For the Effective Equality of Women and Men. It establishes the legal framework to achieve the effective equality of women and men.
Law of Prevention of Labor Risks: Regulates the measures and activities necessary for the prevention of risks derived from work.
Royal Legislative Decrees
- Consolidated text of the Workers’ Statute Law: It is the basic norm in labor matters and regulates basic labor rights and duties, as well as the fundamental aspects of the employment relationship.
- Consolidated text of the Labor Procedure Law: Regulates the procedure to be followed in individual and collective disputes.
- Consolidated text of the General Law of Social Security: Regulates the right to be protected by the Social Security system in situations of necessity.
- Consolidated text of the Law of Infractions and Sanctions in the Social Order: Regulates infractions and penalties in labor matters
- Numerous, among others: Royal Decree establishing the minimum interprofessional salary, Royal Decree on special working hours.
- Collective agreements: Agreements between representatives of workers and employers, in which the working conditions of the workers included in its scope of application are established.
International associations have been created to define common working conditions for all workers in the world. This contributes to the internationalization of Labor Law, which is of interest both to the States and to the workers and employers. The reason is that, with a globalized economy, those countries who produce cheaper by exploiting their workers will have advantages over those who apply labour legislation.
To harmonize working conditions, the ILO is born (International Labor Organization). Spain belongs to the ILO, and also to the European Union, which seeks to harmonize the social laws of the Member States, as well as employment policies.
The external sources are:
- Community Regulations: Community law is directly applicable in all European Member States.
- Community Directives: These rules imply an obligation regarding the result to be achieved, but they require an internal standard of adaptation for their entry into force in the Member states. However, exceptionally, when its content is clear and unconditional, it must be applied directly.
- ILO Conventions: Those that are part of the legal system of the member countries when they are ratified by them.
- International Treaties or Agreements (bilateral or multilateral): In labor matters, these are agreements between two or more States whose purpose fundamental is for the labor protection of migrant workers.
Hierarchy of Labor Rules
- Directly applicable community rules
- Spanish Constitution (CE)
- ILO conventions and international treaties or conventions (bilateral or multilateral)
- Organic Laws
- Ordinary Laws and Norms with The Force of Law
- Collective Agreements
- Employment contracts
- Labor Custom
The Labor Administration: It develops labor policy through different bodies:
- The Ministry of Labor and Immigration is the one that manages state policies regarding labor relations, employment, and the management of Social Security. For this, it has specialized agencies.
- The Employment or Labor Councils of the autonomous communities manage the competencies that have been transferred to them.
Need a labor lawyer in Spain?
Our lawyers have practical experience in resolving employment law disputes. If you need employment law advice in Spain, then choose SpainDesk’s employment law service. We provide an effective solution and the fastest result to solve labor issues. What do our clients get from us?
- We do employer and employee representation.
- We can create and analyze employment contracts.
- We can declare social security and payroll administration.
- We advise on your problem under the law.
- We draw up a claim and prepare all the necessary documents.
- We collect and prepare documents for submitting a written application to the court.
- We create a competitive application.
- We handle all necessary complaints, claims, inquiries, and petitions of labour issues.
- We develop an effective strategy to protect the client’s interests.
- We prepare attractive arguments for the client’s protection in court.
If you want to hire a lawyer for employment legislation in Spain, consult our SpainDesk professionals and get legal guidance as soon as possible.