Labour Info & facts
Types of employment contracts
Disciplinary Dismissal (individual dismissal)
Dismissal based on objective causes according to law
1. Legal requirements
If you are an EU national you can enter Spain as a tourist and register with the Spanish National Employment Office (Instituto Nacional de Empleo – INEM) to look for a job, then you have 90 days to find employment. You can obtain an extension after that date or leave Spain and re-enter for a further 90 days. Once you get a job, your employment contract will be necessary to apply for your residence card.
If you are from a non-EU country willing to work in Spain, you will need to apply for your work and residence permit, and therefore you will be required to present a job contract or an offer of employment in the form of a pre-contract stamped and signed by both parties (or a letter written on the headed paper of the Spanish employer).
Once you are legally working in Spain you will be subject to the same labor legislation as Spaniards, and you will be entitled to all its benefits.
2. Employment contract
The employment contract shall contain the following provisions:
- Details of the employer and the employee.
- Over what time period is the contract in effect, date of starting.
- Type of contract.
- Professional category.
- Description of work conditions: the working centre, the working hours, work schedule.
- Specification of the trial period.
- Duration of the holidays.
- Collective bargaining agreement applicable.
Both parties must sign the work contract. The employee should be provided with one copy of the contract previously stamped in the corresponding National Employment Office (Oficina Nacional de Empleo -INEM).
2.1. Types of employment contracts
There are different types of work contracts, its duration may be indefinite or temporary. Temporary work contracts must establish the duration of these.
The most common types of employment contract are as follows:
.: Contracts for indefinite duration:
– Full time contract.
– Part time contract
.: Temporary contracts.
– Training contract.
– Learning contract.
– Contracts for production needs.
– Contracts for the provision of a specific service or the completion of a specific work.
– Contracts for the replacement of employees.
3. Working conditions
Jobs in Spain must be performed under, at least, minimum working conditions, which are described in the Statute of workers (Estatuto de Trabajadores) and the collective bargaining agreements applicable.
The standard work week is 40 hours, though this varies depending on the occupation. The standard weekly uninterrumped rest is one and a half days (two days for minors), though this also varies from one occupation to another.
Spanish labor rules prescribe that daily working hours are limited to 9 hours work per day. It is also prescribed a minimum of 12 hours’ rest between working days.
Overtime (horas extraordinarias), working hours in excess of the ordinaries ones, are also restricted by law to 80 hours per year, unless the collective bargaining prescribes something different, for which the workers must be compensated whether by economic compensation or by paid time off in lieu. It is legally banned for minors to work overtime.
National holidays are 14 (two of them are locally established) and the vacation period legally paid is 30 calendar days, unless otherwise is established in the collective bargaining.
Working hours are closely connected with other aspects of employment as the salary, which amount and structure is normally established by the collective bargaining agreement applicable. Normally, there exist two extra payments, in June and December.
These are only general guidelines and not definitive statements of the law, all questions about the law’s applications to individual cases shall be directed to a Spanish Lawyer.
4. Salary’s deductions
The employer shall deduct monthly contributions to the Social Security from the employee’s salary, provided that this one exceeds the minimum annual salary, which is around euros 421 a month. These contributions are calculated as a percentage of your taxable income; this percentage is 6.4% at present. The employer will enter your contributions in the Social Security General Treasury (Tesorería General de la Seguridad Social).
Your salary is also subject to personal income tax in Spain, the employer will deduct monthly amounts from your salary to enter it in the National Tax Administration. The amount you will be deducted will depend on what is your personal income.
Dismissal is one of the causes for which the employment contract can be terminated. In this case it is the unilateral decision of the employer to terminate the contract. Dismissal may be collective or individual.
5.1. Collective dismissal
Collective dismissal must be based on economic, technical, organizational or production reasons. It is understood that there exist these reasons where the future running of the society is in danger and it is advisable to terminate some employment contracts to overcome the society «crisis».
There exist collective dismissal in the following cases:
- When it affects at least 10 employees in companies with less than 100 workers.
- When it affects at least 10% of the employees in companies having between 100 and 300 employees.
- When it affects at least 30% of the employees in companies having 300 or more workers, and when it affects the whole staff, provided that the number of employees affected is above 5.
In Such cases the society must start an administrative enquiry before the Labor Authorities which will analyze whether there exist the economic, technical, organizational or production circumstances that the employer alleged or not; they will also analyze if there exist other method to solve the «crisis» situation of the company.
If the administrative decision is in favour of terminating the employment contracts, the company will have to pay the minimum indemnity fixed by law for these cases, 20 days of pay per year of service, with a maximum of 12 monthly pays.
When labor authorities disagree the employers’ decision of terminating the employment contracts, employees with indefinite contracts will be paid the indemnity corresponding to disciplinary dismissal, 45 days of pay per year of service, with a maximum of 42 monthly pays.
The employee can file an appeal against the employer’s decision. The labor judge may agree with the employer’s measure, in which case he declares the confirmation of termination of the contract; or may refuse the termination, and declare that the dismissal has been unfair.
5.2. Disciplinary Dismissal (individual dismissal)
In this case, the employer unilaterally decides to terminate the contract of a worker on account of his serious contractual breach.
The main causes for which an employer can terminate the contract of an employee, can be the following:
- Recurrent or unjustified non-attendance to work or late arrival.
Lack of discipline or disobedience at work.
- Verbal or physical offence to the employer, to other colleagues at work or to their relatives.
- Transgression of contractual good faith and betrayal of trust in the performance of the work.
- Voluntary and continuous decrease of the normal or agreed performance at work.
- Frequent drunkenness or drugs addiction when they have negative influence on the labor activity.
The dismissal shall be notified in writing to the employee.
Where the employee does not agree with the employer’s decision, he may file a demand for conciliation before the arbitration office (Servicio de Mediación, Arbitraje y Conciliación) within 20 days upon receipt of the dismissal letter, in this way both sides may settle a reconciliation. If this fails then the employee must place a suit before the Labor Courts.
When the judge considers that the employer’s decision is justified and proved, the employment contract is terminated without any compensation.
When it is considered that the dismissal is unfair, the employer is sentenced to pay the corresponding wages since the day of dismissal until the day of the judgement. Furthermore, he must either re-employ the worker or compensate him with 45 days of salary per year of service, with a maximum of 42 monthly pays.
5.3. Dismissal based on objective causes according to law
The main causes are as follows:
- The employee’s ineptitude to perform his former position duties.
- Worker’s non-adaptation to the work technical modifications.
- Recurrent non-attendance to work.
To terminate some employment contracts based on economic, technical, organizational or production reasons within a period of 90 days:
Affecting at least 10 employees in companies with less than 100 workers.
When it affects at least 10% of the employees in companies having between 100 and 300 employees.
When it affects at least 30% of the employees in companies having 300 or more workers.
The employer shall notify the dismissal in writing to the employee within at least 30 days before the date in which the dismissal shall take effect. The employee shall receive an indemnity equal to 20 days of salary.
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