Labour and Employment issues must be acted on quickly
The first time that a client seeks legal advice is often to do with an Spanish employment issue. It is important to realise that there are limited time periods for action. Unless an employee lodges their application with the Court that deals with employment matters within 20 working days they lose the right to be able to claim for dismissal or redundancy. Also, for salary, one year.
A client usually approaches us when they have been told they are fired. It is important to realise that a dismissal must be notified in writing in a proper formal letter to an employee. If a client receives a text, a phone call, anything like this it is not effective. They have to receive a “carta de despido”. It must state the reason and it should not be forgotten that the company has the right to sack someone when they wish to. But they must give them compensation. If they have a true reason to sack someone and are not giving them compensation, then there still must be a formal letter. Usually it would be delivered in person or by a burofax.
Redundancy pay is payable once an employee has served a year and varies with the type of contract. If the client does not agree with the compensation or that they were sacked without compensation, they can ask a solicitor to file an application with the arbitration office. This is called SMAC (“Servicio de Mediación, Arbitraje y Conciliación”) but it must be done within 20 days of receipt of the formal dismissal letter.
After this, it is possible that an agreement may be reached. However if this is not possible then the client may have to present a lawsuit in the Labour Courts using a barrister. If the Judge considers that it is an unfair dismissal, the employer will have to pay compensation or re-employ the client. Although it is rare that the client wants this. If a Judge feels that an employer’s decision to fire someone was justified, then the termination of the contract will be upheld without payment.
Other issues that sometimes arise with Spanish employment are being required to work additional hours. Please note that no one can legally work more than 40 hours per week in Spain. It is possible to do extra hours for exceptional reasons, but not as a normal work day.
We also have a great deal of queries regarding contracts to do with Spanish employment. Employers should provide an employee with a copy of the contract signed by both parties and stamped by the local labour office, although they often do not.
The contract is not essential for a claim, but there should be one, and they will either be indefinite, for full-time work, or part-time or they can be temporary. Temporary contracts may only be renewed twice after the first one (so two renewals) or someone cannot be on a temporary contract more than a year. Queries about contracts should usually be directed towards an office that deals with employment issues.
If your employer has not given you a contract, or if you think they are not paying social security for you, there is not a great deal you can do really but to try and talk to them. Always keep your work contract and payslips safe as if a lawyer is to help you, they may need them.
Contact us to discuss any issues relating to employment law.