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Employment Law on the Costa del Sol

This guide was written by Manzanares Abogados S.L. (info@manzanaresinternational.com) in collaboration with Guides.Global (office@guides.global).

It was written on 5 June 2016. The law and practice in Spain change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.

Our guides are prepared by professionals from many countries. They are, of necessity, both brief and general and can take no account of your personal circumstances. They are intended to be a good introduction to the subject BUT ARE NO SUBSTITUTE FOR PROPER PROFESSIONAL ADVICE, which our contributors will usually be happy to provide upon request.

The advice and opinions contained in the guides are those of the author and are not necessarily those of Guides.Global.

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The scope of this guide

This guide is about the law relating to employment in Spain. It sets out both your rights and your obligations as an employee.

It describes, in particular, employment law in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one "autonomous community" (comunidad autónoma) lightbulb image - click here for more information on this subject to another.

This guide does not cover self employment and it does not deal with how to find employment.

Introduction

Any foreigner that wishes to work in Spain will have the same rights and obligations as Spanish nationals do.

The process for becoming able to work will depend on the nationality of the employee.

EU citizens do not need a special permission to work, and they can be employed straight away; they just need to obtain an NIE (Número de Identidad de Extranjero - an identification number) and a social security identification number, which is a very simple administrative process.

For non EU citizens wishing to work in Spain, special permission (a work visa) needs to be obtained. This process will vary depending on the specific bilateral and international agreements between Spain and the country of the employee. The process can take a long time - it will depend on the type of work you will be doing - and a work offer must be in place before the process starts. Work permits are not granted in all cases. It will depend on the circumstances. For example, it is unlikely that you will be granted a work permit for a job that could be easily done by a Spanish applicant. See our Guide to Coming to the Costa del Sol to Work.

Spanish law gives you substantial employment protection but, be aware, many employers try to get round the law by employing you (totally illegally) without a contract and paying you cash in hand.

The Spanish Labour Code

The relationship between employee and employer are dictated by the Spanish Work Code - Código de Trabajo de España - which is a law that applies throughout Spain. It lays out the basic principles that must rule that relationship.

Besides this Work Code, there is usually a more detailed regulation specific to the sector or activity in which a company operates. This specific regulation is named Collective Bargaining - Convenio Colectivo . For exmaple, within the Málaga region (which includes the Costa del Sol) there is a specific 'collective bargaining' for the food and accommodation sector. This applies to all employees working in hotels, restaurants and bars in the region of Málaga, and they must all follow this convenio. In some other sectors, the Convenio Colectivo applies across Spain and its territories.

As these regulations are so specific and diverse, it is a good idea to seek the advice of a lawyer who is specialised in employment law. The lawyer will inform you on the regulations applicable in your specific case.

Your right to a contract

Under Spanish law, after signing a contract to work, the employer is entitled to place you on a probationary period of up to two months (depending of the type of work and qualification requested) during which time he can dismiss you without cause and you can leave without having to give notice.

Your contract should mention the following points:

There is a special format required for this contract.

It is a good idea to have an employment lawyer check over this contract before signing.

Taxes and social security

As an employee you will usually have to pay tax and social security payments. The amount of tax depends upon your earnings.

Social security and tax will be deducted from your salary. Social Security deduction will be around 6-7% and tax deduction depends of the level of your salary and family circumstances.

Holiday entitlement

After you have been employed for a minimum of one year (or sooner if it is agreed in your contract) you are entitled to a minimum of 30 days' paid holiday per year.

Discipline and dismissal.

If your employer has a grievance about your conduct they must raise it with you, verbally to start with. Each employer must have a written policy as to how such complaints are to be dealt with. They must then follow that policy. If there is no such policy, a default policy applies.

If the company decides to dismiss you, they have the obligation of communicating this to you in writing, and they must clearly state in the document the reason why you are being dismissed, so you are aware of it and are able to make your argument against it.

This must be done with 15 days' notice. If they don't give the required notice, the company must compensate the employee for the 15 days.

If the employee disagrees with the reasons of dismissal, he or she can start a process for declaring it 'unfair dismissal'. If they are successful, the compensation that can be claimed is 33 days' salary per year worked in the company.

If you wish to file a claim against your dismissal, you must do so within a deadline of 20 days since you were fired. Contact a lawyer immediately as they will need as much time as possible to prepare the case and carry out the required formalities. In the case of a larger organisation, this would typically involve the initial decision (your dismissal) being made by somebody in the employment department and the appeal going to a senior manager.

Redundancy

If the circumstances of the company change and there is no longer enough work for you to do the employer may make you redundant. This right arises whether the lack of work is due to economic circumstances, technological development or a reorganisation of the workplace.

In some places, the redundancy will affect only one or two people. In other cases it can involve large numbers of people. In the case of large-scale redundancies (known as "collective dismissals") more complex procedures arise but they're probably outside the scope of this short guide.

If the redundancy is a small-scale redundancy then there is no special procedure to be followed apart from the requirement to give you written notice of the redundancy.

In the event of redundancy, you will be entitled to a severance payment. This will include the payment to which you're entitled for your period of notice and your accumulated holiday entitlement. In addition, you will be entitled to 20 days' salary for each full year that you were employed by the employer up to a certain maximum laid down from time to time by the government.

Health and safety

Spanish law makes the employer responsible for the health and safety of their employees during the course of their employment.

The employer is, in particular, required to:

Employers must also have, at the place of work, an accident book and ensure that it is completed after any accident that might occur. See our Guide to Accidents at Work on the Costa del Sol.

Restraint of trade

The employer may place in your contract a clause preventing you from working for his or her competitors for a certain period of time and within a certain geographical area. The clause must also be limited in time - for example, to a period of two years.

The restriction as to the scope of the restraint - i.e. the range of people that you cannot work for and the geographical area to which it applies - must be reasonable in all circumstances. Otherwise it will struck out by a court.

Other employee rights

Overtime pay

If you work more than 40 hours in the week you must be paid overtime for the excess hours. They amount is fixed by the Convenio Colectivo. This does not apply to highly paid executives. The interpretation of highly paid is left to the discretion of the court.

Weekend break

Any employee who has worked 40 hours in the week is entitled to a continuous two-days' break.

Rest breaks

You are entitled to a rest break, typically of 20 minutes every four hours. The precise terms depend upon the industry in which you work.

Minimum wage

Minimum wage is fixed every year by Government. The minimum salary for each specific sector will be determined by the Convenio Colectivo, depending on the position, qualification, etc. Expatica has a great guide on this subject.

Illness

Employees are entitled to time off in the case of illness or injury.

You'll be entitled to time off for the period certified by your doctor. If that period exceeds the period of notice the employer is required to give to you, the employer has the right to terminate your contract by giving you due notice.

Maternity rights

You have the right to receive your full salary for a period of 16 weeks after your child's birth.

Paternity rights

There is a right for paternity leave. It is normally three days after your child's birth, but it varies depending on the applicable Convenio Colectivo.

Protection from discrimination

The Spanish Labour Code prohibits employers discriminating on the basis of language, race, religion, gender or political/philosophical views. Failure to comply gives rise to a claim for compensation of up to four months' salary plus any other claim to which the employee might be entitled.

Protection from harassment

If an employee is subject to harassment, whether sexual or an affront to their honour and dignity, they may demand an immediate end to their employment and receive the full severance payment to which they would be entitled in the case of an unfair dismissal.

Other employee responsibilities

The employee has the legal obligation to work diligently and honestly for the employer, to protect the employer's business secrets and to act in good faith at all times.

Expats' Tips

Have you had experience with employment in Spain? Tell us about it and share your story by emailing office@guides.global.

Conclusion

Employment rights are complicated in almost every country and employment disputes are always painful. However, the law in Spain seems to offer a fair balance between the protection of the employer and the employee.

Other guides of interest

 Description Link 
Accidents at Work on the Costa del Sol
This guide is about accidents that happen in the workplace on the Costa del Sol.
Accidents at Work in the Costa del Sol
Disputes & Court Cases on the Costa del Sol
This guide is about all aspects of dealing with a legal dispute on the Costa del Sol. It covers preliminary stages, mediation, arbitration and going to court.
Disputes & Court Cases in the Costa del Sol
Cultural Differences on the Costa del Sol
This guide is about some of the main cultural differences you're likely to come up against on the Costa del Sol, including in business culture.
Cultural Differences in the Costa del Sol

Readers' Comments

 

Further information?

We hope you have found this guide useful. If you need any further help, please contact us.

Manzanares Abogados S.L.

5 June 2016


 

This guide was co-authored by John Howell (Email: John.Howell@Guides.Global or John@jhco.org. Web: www.jhco.org or www.Guides.Global)

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