Spanish law differentiates between self-employed workers and employees. An employee is an individual who works for another person/entity (employer) and for which he or she receives a salary. Employees are managed and supervised by the employer or a more senior member of the employer (whether an individual or organization). A self-employed worker works for oneself rather than for an employer.

There are permanent contracts and fixed-term contracts (the type of contract entered into depends on an employer’s production circumstances, the type of work or services carried out, whether the purpose of the contract is to substitute an employee or for training, etc.). A fixed-term contract is an employment contract with an expiration date. A permanent employment contract is a contract that does not expire. Both of these contracts can be for full-time or part-time positions.

An employment contract may be executed in writing or orally and is presumed to exist between anyone who provides a service and the person or entity to whom such service is provided (the employer). Employment contracts will be recorded in writing when legally required and when the employment relationship lasts for more than four weeks. If such a requirement is not met, the employment contract will be presumed to be for a permanent and full-time position, unless the temporary nature or part-time nature of the services is proved. Likewise, either party may require that the contract be entered into in writing, even during the course of the employment relationship.

An employer must communicate the content of the employment contract and any extensions thereof to the public employment office in writing and within ten days following the execution of the employment contract, regardless of whether or not it must be formalized in writing. The employer must provide the employee representatives with a basic copy of all contracts that must be executed in writing.

Part-time employees have the same rights as full-time employees. Where appropriate given their nature, such rights are recognized in laws, regulations and collective bargaining agreements on a proportional basis, according to the time worked. The absence of direct or indirect discrimination between women and men must be guaranteed in all cases.

Employees can be temporarily assigned to another company if this is done through authorized temporary employment agencies.

The change of ownership of a company, workplace or autonomous production unit will not cause the termination of the employment relationship, given that the new employer will subrogate to the employment and social security rights and obligations of the previous employer, including pension commitments, under the terms provided for in its specific regulations, and, in general, any additional labor obligations acquired by the transferor. This is known as a transfer of undertaking.

The change of ownership of a company through a sale and purchase of shares does not entail a change of employer, and therefore there is no transfer of undertaking, nor do employees have additional rights. If, on the other hand, there is a sale or purchase of assets, there will be a transfer of undertaking as detailed in the previous question.

The employer may make substantial changes to working conditions when there are proven economic, technical, organizational or production reasons. Substantial changes to working conditions will be considered, among others, as those affecting the following matters:

1. working day; 
2. work schedule and distribution of working time;
3. shift work;
4. remuneration system and amount of salary;
5. work and performance systems; and
6. functions when they exceed the functional mobility limits established by law.

Substantial changes to working conditions may affect the conditions recognized for employees in the employment contract or agreements or enjoyed by them by virtue of a unilateral decision of the employer.

In most of the cases mentioned above, if the outcome of the substantial modification is detrimental to the employee, the employee will be entitled to terminate his or her contract and receive severance pay equivalent to twenty days' salary per year of service, with a maximum of nine months of salary. Substantial changes to working conditions are subject to certain procedures and formal requirements.

At-will employment is not permitted in Spain. Employment can be terminated based on disciplinary or objective (economic, organizational, production, and technical causes among others) grounds, or due to the expiry of the agreed duration of the employment contract.

When the dismissal is declared unfair, the employer must choose between the reinstatement of the employee or payment of a severance compensation equivalent to thirty-three days of salary per year of service, up to a maximum of 720 days of salary.

Spanish law protects anyone who, in an employment or professional context – whether in the public or 
private sector – has obtained or is privy to information about a violation of the law and reports it. The 
protection is not limited to employees and also includes any other person who, in the course of their 
professional practice or in the context of a provision of services, has interacted with the specific entity.

An array of measures is established to protect whistleblowers, such as the prohibition of retaliation, assistance (advice and information, legal assistance, financial and psychological support, etc.), limitation of liability as 
regards the disclosure of confidential information (if specific requirements are met) or the whistleblower’s 
potential exemption from – or mitigation of – administrative liability.

Employees have the right to privacy when using digital devices made available to them by the employer, to digital disconnection and privacy when using video surveillance and geolocation devices with regard to the protection of personal data and the guarantee of digital rights. However, the employer may prohibit the use of work tools for personal purposes and may monitor their activity. Likewise, video surveillance requires prior notification and information to the employer unless there are other rights at stake that allow the employer after pondering them to use video surveillance without giving prior notice. Remedies for the breach of any type of fundamental right are the possibility to claim compensation before the labor courts for the damage caused as a consequence of the infringement.

Employees have the basic right not to be directly or indirectly discriminated against when undergoing an employment process, once employed, or upon the termination of employment/at the end of their employment.

All employees are entitled to 30 calendar days' leave and 14 public holidays each year. In addition, absences due to the legal right to strike (i.e. the duration of the strike), employee representative responsibilities, work accidents, maternity leave, high-risk pregnancies and breast-feeding, health problems that develop during pregnancy/pregnancy complications, childbirth, paternity leave, non-occupational illnesses or accidents, are permitted.

Spanish labor law regulates non-competition obligations, which include non-solicitation obligations, subject to the following conditions: (i) the employer has a real industrial or commercial interest in the non-competing; (ii) the non-compete obligation cannot exceed 6 months for unqualified employees and two years for technicians; and (iii) the employee must be paid fair compensation. Other restrictions such as confidentiality, exclusivity and non-disparagement can be regulated by the parties in the employment contracts. The geographical location, scope and term of the non-competition agreement should be agreed upon by the employee and the employer.

Employees’ contracts cannot be terminated owing to their refusal to sign a restrictive covenant. In the event that an employee fails to comply with the restrictive covenants included in his or her employment contract, the employer may make a claim for breach of contract before the labor courts, claiming compensation for damages.

Spain has a national social security system. Contributions are mandatory for both employers and employees. The system provides benefits to individuals in the event of retirement, death, temporary or permanent disability and unemployment. In addition, there may be private pension or retirement schemes.

Please see our response to the previous question.

Collective bargaining agreements can establish mandatory retirement upon reaching the statutory minimum retirement age, subject to compliance with certain requirements.

If employees continue working after the minimum mandatory retirement age, social security contributions must continue to be paid for them, although certain reductions may be available. On the other hand, private pension schemes are governed by their own rules that can include the possibility of ceasing the payment of a pension or insured benefits when work continues beyond retirement age.

Employers cannot force employees to get vaccinated against COVID-19, as this would affect fundamental rights such as privacy, physical integrity, etc. Any dismissal based on the employee’s refusal to get vaccinated may even be classified as void and the employer could be obliged to reinstate the employee.

Yes. An employer can require that employees return to work in the office (absent a government order to shut down). The refusal to return to the office may be a cause for a disciplinary dismissal, although this would need to be assessed on a case-by-case basis.