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Spain - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Spain - 2019    

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Obligation to provide reasons to the employee: Yes
  • Art. 53(1)a): written notification of dismissal stating the reasons.

Valid grounds (justified dismissal): economic reasons; worker's conduct; worker's capacity
  • 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.

Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; race; colour; sex; sexual orientation; religion; political opinion; social origin; age; trade union membership and activities; disabilities; adoption leave; ethnic origin
  • 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).

Workers enjoying special protection: workers' representatives
  • 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).