Brexit without agreement
What will my situation be?
The Withdrawal Agreement provides for the establishment of a transition period until the 31st December 2020, subject to extension. During the transition period my rights derived from the application of European Union Law will be maintained with the following exceptions: Right of active and passive suffrage in elections to the European Parliament. Right of active and passive suffrage in municipal elections. However, Spain and the United Kingdom have adopted a bilateral Agreement in relation to municipal elections, so that Spanish and British citizens may continue enjoying active and passive suffrage in those elections, now under the bilateral Agreement. Exercise of the EU Citizen Legislative initiative. Once the transition period is over, the Withdrawal Agreement provides that my residence, work, education and Social Security rights will be maintained. You can view this document of the European Commission https://ec.europa.eu/commission/sites/beta-political/files/2018-11-26_qa_citizens_rights_es_1.pdf which contains questions and answers about who benefits from the Withdrawal Agreement and what are their rights.
What do I have to do today?
If you have not done it yet, you must register as a citizen of the Union resident in Spain. Until the withdrawal date from the United Kingdom, you will remain a citizen of the European Union and as such, in case you want to reside more than three months in Spain, you must register at the Central Foreigners Registry, being issued immediately a certificate of registration stating the name, nationality and address of the registered person, his / her Foreigner Identification Number and the date of registration. This procedure will allow you to obtain a certificate of registration that will be very useful after the United Kingdom withdrawal date in either of the two scenarios.
I am a Spanish or British citizen. What will my rights be if I intend to reside after the end of the transition period?
The rights of Spanish citizens and their families who begin their legal residence in the United Kingdom after the transition period will be those established by the Agreement that regulates the future relationship or, failing that, those established by the United Kingdom. The rights of British citizens and their families who begin their legal residence in Spain after the transition period will be those established by the Agreement that regulates the future relationship or, failing that, those established by Spain.
What legislation covers discipline and grievances at work?
The disciplinary procedure can be regulated in the contract of employment, the collective bargaining agreement and the internal policies of the company. The Statute of the Workers regulates the disciplinary dismissal and the procedure that the employer must follow in this case.
What regime should an employer follow in a disciplinary or grievance situation?
The employer must follow the procedure that are established in the contract of employment, Collective Bargaining Agreement or internal policies of the company. As a general rule, in the case of workers' representatives, a procedure with more formalities and guarantees is required.
Is it frequent to find disciplinary regulations under the applicable CBA? What are the normal required steps for the employer?
Very often collective bargaining agreements regulate the misconduct, sanctions and the disciplinary procedure to be followed in each case. In general, the steps to follow will depend on the need to initiate a contradictory inquiry or not. In the case of gross and very serious misconducts, the sanction must be communicated in writing to the worker and in the case of very serious misconduct the sanction must also be communicated to the representatives of the workers.
What happens if the indications contained in the CBA on disciplinary and grievance procedures are not followed?
If the formalities of the disciplinary procedure established in the Collective Bargaining Agreement are not complied with, in the event of a legal claim the judge may declare that the disciplinary sanction is unfair.
What should an internal dismissal disciplinary and grievance policy and procedure contain?
It is recommended that an internal disciplinary procedure policy include conducts that can be considered as minor, gross or very serious misconducts, the penalties corresponding to each one of the misconducts, the procedure to be followed by the company to apply sanctions guaranteeing the right of defense of the worker and the application of the principles of reasonableness and gradualness.
Can an employer simply dismiss an employee in cases of gross misconduct?
Yes, provided that the applicable CBA does not provide for a special procedure to be followed prior to dismissal
Should a disciplinary decision be made by an employee’s manager, a more senior manager, or by HR?
This will depend on how it has been regulated in the applicable Collective Bargaining Agreement or in the Internal Policy of the company. As a general rule, the disciplinary measure is applied by HR personnel that represent the Company or even by the employee’s boss, on behalf of the Company.
Does a disciplinary procedure have to be followed before issuing oral or written warnings to an employee or suspending them on full pay?
In general, a disciplinary procedure is not required for the application of an oral or written warning, unless the CBA or the internal rules provide for it.
Can an employer take disciplinary action against several employees when they cannot prove which employee committed the conduct in question?
No, in order to apply a disciplinary measure, it must be clearly known who committed the conduct and that it constitutes misconduct. In this case, the employer must initiate an investigation of the facts to identify the employee or employees who committed the labor misconduct.
Data protection, surveillance and privacy at work
How should an employer deal with a complaint of bullying?
The company has the obligation to take care of the health of its workers and to avoid this type of situation, therefore, once it receives this type of complaints it must investigate and adopt the pertinent measures, according to the established in the collective agreement applicable or In the internal politics of the company.
Can employers investigate cases of bullying and harassment in the workplace on the basis of anonymous witness evidence?
Yes, employers can establish within their policies against harassment the possibility of anonymous complaints, because in these cases the complainants could be afraid of the harasser's reprisals.
How far can an employer take into account misconduct that occurs off-duty when contemplating disciplinary action?
The Collective Bargaining Agreement may regulate that misconduct outside the workday is sanctioned by the employer when it is related to the work activity. However, as a rule, the worker's behavior outside the workday and the work center are part of his private life, therefore could not be sanctioned by his employer.
What is data protection and what are the basic data protection principles?
Is the protection of the public freedoms and fundamental rights of natural persons, in connection in particular with the processing of their personal data and its impact on the right to protect their honor and their personal and family’s privacy. Anyone processing personal data must comply with the enforceable principles of good practice. These provide that personal data must be: •processed fairly and lawfully •processed for limited purposes and in an appropriate way •adequate, relevant and not excessive for the purpose •not kept longer than necessary for the purpose •processed in line with data subjects' rights
If an individual is entitled to request to view their personnel file from an employer, what is the procedure?
Data subjects shall be entitled to request and obtain, at no cost whatsoever, information on the personal data processed by the controller, the origin of such data and any past or intended future disclosure thereof. Such information may be obtained in response to an inquiry by simple visualization of the data, or in writing, in which the data being processed shall be described on a legible and comprehensible copy or photocopy, certified or otherwise. Such information shall contain no codes whose interpretation calls for specific hardware.
Can employers require people to use their subject access rights to provide certain records, such as police records, as a condition of employment?
The employer can request the criminal records from an employee if the purpose justifies it, but cannot have that information in a file.
If an employer contracts out payroll services what are the obligations as regards the supply of data to this third party?
Processed personal data may only be disclosed to third parties for purposes directly related to the sender’s and the recipient’s legitimate activities and providing the data subject lends his prior consent thereto. Third party processing must be regulated in an agreement that must be in written or some other form whereby the conclusion and content thereof can be verified. Such agreement must explicitly specify that the processor may only process the data in accordance with the controller’s instructions, that he will not apply them to or use them for any purpose other laid down in the agreement, nor disclose them to others, even for storage.
Do employers need to seek explicit consent from employees before processing data relating to the reasons for sickness absence?
Personal data referring to health may only be collected, processed or transferred when so provided by law for reasons of general interest or where the data subject explicitly grants his consent thereto.
Is there any guidance on the length of time personnel records or individual items of data should be retained?
Personal data shall be erased when they are no longer necessary or relevant for the purpose for which they were obtained or recorded. They shall not be stored in a manner in which the data subject can be identified for any longer than necessary for the purpose for which they were obtained or recorded.
What can an employee do if he/she believes that an employer has breached its rights under the Data Protection Act?
The employees affected by conduct contrary to the right of data protection may claim before the Data Protection Agency. If as a consequence of such breach, they suffer any damage or injury in their property or rights will be entitled to indemnity.
Can an employer install a video surveillance system in the company?
The employer may install a video surveillance system, provided that it is carried out with the necessary guarantees, that is, it is a justified measure and it respects the right to privacy of employees.
What should an employer do to manage employees' use of social networking sites such as Facebook?
The employer may install internet control methods such as monitoring programs, firewall controls, proxy servers or sniffers.
Maternity, paternity, shared parental and adoption leave and pay
What limits are there to all of the above?
The respect to the principle of proportionality of the measure adopted and the right to privacy of employees.
Is it advisable to have a code of conduct for these purposes?
Yes, it is advisable that companies should have a handbook or code of conduct, since if there is no prohibition and the company simply tolerates a moderate use of these instruments for private purposes, the assessment of what is or not an excessive use is moved to the employee.
What should an employer do to dismiss an employee who has been using Facebook during the working day, or its professional email for private purposes?
Prior to do a dismissal, the employer should establish the rules of usage of the telematic means -with absolute or partial prohibitions- and inform the employees that there will be a control and of the means that have to be applied in order to verify the correction of those uses.
What legislation governs maternity, paternity, shared parental and adoption leave and pay?
The paid leave related to maternity, paternity and adoption is regulated in the Workers' Statute and in the collective agreement applicable in each case. In all cases, the amount of the benefit during the rest period will be 100% of the regulatory base.
What extensions have maternity, paternity and adoption leaves?
Maternity leave lasts for 16 uninterrupted weeks of which at least 6 weeks must be enjoyed by the mother immediately after childbirth. The duration of paternity leave is 4 weeks uninterrupted. In adoption cases, the duration is the same but there is no requirement for the 6 weeks immediately following delivery.
What notice is an employee required to give to their employer when taking maternity leave?
The employee must visit the doctor to prove the birth and thus apply for maternity leave. The doctor will issue a maternity report that the worker must deliver to the company within 7 days.
Does an employee have the right to return to exactly the same job after maternity/paternity leave?
Yes, both maternity and paternity leave and adoption allow for the reservation of the workplace once the legal permission has been terminated.
What is the position concerning holiday entitlement during maternity leave?
The legislation establishes that, when the holiday period coincides with the period of temporary incapacity derived from maternity, childbirth or breastfeeding, the worker will be entitled to enjoy such leave at a time other than the incapacity. That is, you can enjoy the vacation once the temporary incapacity ends. These holidays may be enjoyed even in the calendar year following which they were earned.
What happens to the level of statutory maternity pay if the employee is awarded a pay rise while absent on maternity leave?
The law clearly establishes the assumptions in which the regulatory base of the subsidy will be modified: •When the minimum contribution base applicable to the worker in the scheme in question is modified, and therefore it will be necessary to update its amount from the date of entry into force of this new minimum base. •When there is an increase in the contribution base, as a result of an increase in the wages of workers by virtue of a legal provision, collective agreement or judicial sentence that takes the economic effects back to a date prior to the start of the break Maternity, adoption or foster care. •When the last contribution base in the system's corporate databases has been taken to calculate the subsidy and subsequently verified that the system does not coincide with the common contingency contribution base for the month prior to the start date of rest or leave. Therefore, any cause other than these three mentioned will not imply an increase in the regulatory base of the maternity allowance and, therefore, will not entail an increase of the same.
What amount must an employer pay during maternity leave?
During maternity, paternity or adoption leave, the worker will receive the subsidy directly from the managing entity (INSS or ISM), which is 100% of the regulatory base. The company should only keep up with the social security contributions.
How does shared parental leave work?
Permit sharing is a mechanism for both parents to spend time with the family either simultaneously or successively and applies both to cases of biological delivery and to adoption cases. The permission granted to the mother, as we have commented, consists of 16 weeks of which 6 must be enjoyed immediately after the birth and the rest can be distributed at the mother's choice. However, the law allows that, in the case of both parents working, the mother can give part of her 16 weeks of rest to the father so that he enjoys them after childbirth.
What are the qualification requirements for shared parental leave?
The only requirement to distribute the period of maternity leave between the two parents is that both work. It should also be borne in mind that, despite being able to give up part of her rest period, the mother must complete the 6 weeks rest immediately after childbirth.
What happens if an employee is sick during maternity leave?
If the worker becomes ill during the maternity leave, her maternity aid and protection will prevail in any case during the maternity period. That is, it is not appropriate to receive the two subsidies (maternity and temporary incapacity). First the maternal rest period must be exhausted and, once it is completed, the employee will be able to request temporary incapacity. The only way to receive both subsidies simultaneously is if the worker receives the maternity benefit on a part-time basis.
What happens if an employee's position becomes redundant during maternity leave? Is it possible dismissing a pregnant employee or an employee who is in maternity leave?
In that case a dismissal based on business grounds should be equally valid as with any other worker. However, the dismissal of pregnant workers or in situations of suspension of the contract for maternity leave is very delicate because of the very high protection during such situations in our legislation. It is also possible to analyze the specific case and make sure that the dismissal is the only option left for the employer. These redundancies have a high risk of being declared void with the consequences of the reinstatement to the work position of the employee and the payment of processing wages. The only way to avoid nullity is that the dismissal has real and objective causes to be realized. Otherwise, it could be understood that the dismissal was made simply because of being in maternity which constitutes a discriminatory act on the basis of sex.
What legislation specifically covers workers on temporary contracts?
Temporary contracts are governed by the Statute of Workers and, specifically, Articles 14 and 15 thereof. Likewise, Royal Decree 2720/1998, of 18 December, develops the mentioned Article 15 WS. For all those aspects that are not regulated in RD 2720/1998, the Statute of Workers applies. At European level there is the Framework Agreement on fixed-term work, concluded on 18 March 1999, published in the Annex to Council Directive 1999/70 / EC.
What kind of temporary contracts exist?
In Spain there are three types of temporary contracts: 1) Contract for work or service: It is a contract that is agreed for the performance of a specific independent and self-contained work or service the execution of which, although limited in time, is in principle of uncertain duration. 2) Eventual contract due to production circumstances: This is a contract that is arranged to meet circumstantial requirements of the market, accumulation of tasks or excess orders, even when dealing with the normal activity of the company. 3) Interim Contract: Intended to temporarily substitute an employee with the right to the reservation of job position by virtue of Law, collective agreement or individual agreement.
Do temporary employees have the same rights as permanent employees?
In principle, the only difference that existed between a fixed employee and a temporary employee was the severance/termination payment. The Law provides for compensation for fixed employees of 20 days' salary per year worked in case of fair dismissal based on business reasons and 33 days per year worked in case of unfair dismissal. However, the compensation for temporary employees, in case of termination of the contract (not dismissal) is 12 days of salary per year worked and, in the case of interim contracts, there is not compensation. Due to this inequality, the Court of Justice of the European Union, in its judgment of 14 September 2016, established that temporary employees should have the same compensation as fixed employees. This Court Ruling still needs to be interpreted by Spanish tribunals.
Does an employer have to pay temporary employees exactly the same rate as permanent employees?
Yes. European law provides for the application of the principle of non-discrimination to employees with a temporary contract in relation to employees with permanent contract. In this sense, the European law itself states the non-discrimination in terms of "working conditions". Therefore, as a general rule, temporary employees must have exactly the same conditions as fixed employees for the same job position.
Does an employer have to make redundancy payments equivalent to those payable to permanent employees when a temporary contract expires?
Temporal contracts have a specific severance compensation linked to the termination of the grounds that justified its entry into force.
Should employers count employees whose temporary contracts are coming to an end for the purposes of collective redundancy consultation?
In principle, temporary employees should not count as dismissals for the purposes of collective redundancy thresholds provided that (i) such temporary contracts were not fraudulent; and (ii) that the termination of the contract has occurred by finalization of the grounds that justified its entry into force.
Is it possible to employ people on a series of temporary contracts rather than offer them a permanent contract?
No. Linking temporary contracts one after the other for the sole reason of avoiding permanent contracts constitutes a fraudulent use of law. The fraudulent use of temporary contracts will automatically convert the employee’s temporal contract into a fixed one.
What procedure should an employer follow when a temporary contract expires to avoid unfair dismissal claims?
The most important aspect to protect the company from an unfair dismissal is to make sure that the temporal contract is finalized once the grounds that gave birth to it have come to an end. Also, the Company will need to give the legal notice period and severance and make the last payments to the employee.
What happens if a temporary contract expires but the employee continues working after termination date?
When the term stated in the contract has come to an end, the contract must be denounced by any of the parties. If the contract is not denounced and the employee continues providing services after the term stated in the contract, it will be understood that there is an implicit will to convert the contract into an indefinite one.
What legislation applies to work absenteeism?
Royal Legislative Decree 2/2015 that approves the Statute of Workers.
What is meant by work absenteeism according to the Statute of Workers?
These are meant to be the justified absences to work that repeat themselves over time in certain periods already pre established by law, which justify itself the termination of the work contract based on objective grounds. Absenteeism differs from unjustified absences in the form of dismissal used. While the first one will be based on a mathematical calculation in an objective dismissal, the second one will have to be carried out with a disciplinary dismissal based on a breach of contract. The following shall not be counted as absences: absences due to legal strike, legal representation of employees, work accident, maternity, risk during pregnancy and lactation, illnesses caused by pregnancy, childbirth or breastfeeding, paternity, licenses and vacations, among others expressly established in the Law.
How can an employer minimize the occurrence of short-term absences and what support is available?
Through the Collective Bargaining Agreement the Company can always negotiate flexibility and productivity measures to promote the attendance at work. Furthermore, the employer can also require more consistent health checks of their absent employees with their Mutuals, to have a better control of their health status.
What do employers need to know about the use of medical certificates or sick notes?
Companies need to communicate the medical report of the sick leave or the confirmation of the sick leave to the National Social Security Institute (INSS) within three working days, by means of the Electronic Data Referral system (RED), or the medical receipt that the employees present to them. The breach to comply with this obligation may constitute an administrative penalty.
Can the employer hold in abeyance the salary increase for absenteeism?
No, if the salary increase has been previously agreed or derive from the applicable collective bargaining agreement. Yes, if the salary increase derives from the fulfillment of individual objectives and the performance evaluation of the worker.
What possibilities does the Labour Law offer to the employer regarding long-term absenteeism?
The labor law has considered absenteeism as one of the objective causes of termination of the employment contract. For this, the employee must incur in absences from work that reach twenty percent of its working days in two consecutive months, provided that the total absence of attendance in the previous twelve months has reached at least five percent of the total working days, or the Twenty-five percent in four discontinuous months within a twelve-month period.
Can the employer require the employee specific medical documentation about his sick leave?
The employee shall deliver to the employer the copy of the sick leave or the confirmation of the sick leave within a maximum period of 3 business days, counted from the day the report was issued. In case of very short sick processes the term is reduced to 24 hours. Failure to comply with this obligation may be considered a minor infraction of the worker, resulting in the corresponding sanction by the employer.
Should the employer obtain the consent of the employee to manage the information of his sick leave?
Taking into account the provisions of the Data Protection Law and in order to ensure the rights to the privacy and dignity of the employees, the data of the employees is confidential. In this sense, it is necessary that the employer requires the consent of the employee.
Would a contractual clause be valid in order to extinguish a worker's contract for long-term absenteeism?
The employment relationship can only be terminated for absenteeism, according to the provisions established in the Statute of Workers.
Can an employee be dismissed during a sick leave?
Yes, but not justified in his sickness, unless you fall under a termination for absenteeism.
Is there any way an employer can dismiss an employee on sick leave that is not really suffering of any psychological or physical illness, or that is not being diligent enough with regards to the medical treatment prescribed?
The employer can hire a private detective or use another method to verify if the employee is actually complying with the corresponding medical leave or committing a fraud against the social security, in which case his contract could be terminated due to gross misconduct.
What legislation regulates age discrimination?
At a national level, the first rule to be taken into account is Article 14 of the Spanish Constitution, which, although it does not expressly include age as a ground for discrimination, must be subsumed under the constitutional precept since it is open list. Likewise, the Workers' Statute also establishes the prohibition of discrimination for any ground under the threat of nullity. At a European level, we find the Article 19 of the Treaty of the European Union, the Charter of Fundamental Rights of the European Union and Council Directive 2000/78/EC of 27 November 2000. Finally, at the international level, the prohibition of discrimination is contained in the Universal Declaration of Human Rights and the Discrimination Convention of the ILO. Although such provisions do not expressly include age as a factor of discrimination, it has been argued that it is not an exhaustive list and other grounds of discrimination may be included as well.
What are the forms of discrimination and who does the prohibition of age discrimination protect?
The Spanish Constitution includes, among others, race, birth, sex, religion or opinion lists as grounds for discrimination. However, article 14 of said norm mentions likewise "any other personal or social condition or circumstance". This statement opens the door to the inclusion of other grounds for discrimination, such as age. The prohibition of discrimination on the grounds of age protects any person who is discriminated due to his/her age (or any other ground). So despite of the individual's personal circumstances, protection is given to the objective situation of being discriminated.
How can an employer objectively justify a dismissal with indications of age discrimination?
An employee cannot be dismissed because of his age, so any dismissal that involves possible age discrimination would be considered null and void by a Court. The termination of the contract must be justified based on other grounds different to the employee’s age.
Is there case law guidance on the amount of compensation an employer will have to pay an employee who wins an age discrimination claim?
A claim based on age discrimination implies the nullity of the dismissal. The effect of a null and void dismissal is reinstatement of the employee in the same job position and with the same working conditions that he had before the dismissal. Therefore, no compensation for dismissal should be paid but the employee must be paid the accrued salaries from the dismissal day until the day of reinstatement, which in the specific case of Spain is usually approximately one year. Likewise, the nullity of the dismissal could imply, apart from the legal effects mentioned above, a compensation for damages since a fundamental right has been violated. It is important to clarify that both the source and the amount of compensation for damages will depend on the specific case. Violation of a fundamental right does not imply an automatic compensation.
5. Can employers exclude older employees from social benefits such as long-term disability insurance, permanent health schemes or life assurance cover?
In principle, disability, health schemes and pensions are covered by the Social Security. However, in case of benefits given by the employer on top of the already given by the Social Security, the employer is free to offer them to the employees he consider appropriate. Nevertheless, we do not advise to make such a clear distinction between old and young employees, as this could create a potential law suit against the company for age discrimination.