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Disciplinary procedure

The disciplinary procedure may be regulated in the employment contract, in the collective bargaining agreement and in the company's internal policies. The Workers' Statute regulates disciplinary dismissal and the procedure to be followed by the employer in this case.

The employer must follow the procedure established in the employment contract, collective bargaining agreement or internal company policies. As a general rule, in the case of workers' representatives, a procedure with more formalities and guarantees is required.

Very often, collective bargaining agreements regulate misconduct, penalties and the disciplinary procedure to be followed in each case. In general, the steps to be taken will depend on whether or not a contradictory file has to be initiated. In the case of serious and very serious misconduct, the penalty must be communicated in writing to the employee and in the case of very serious misconduct, the penalty must also be communicated to the employee's representatives.

If the formalities of the disciplinary procedure established in the Collective Bargaining Agreement are not complied with, in the event of a judicial complaint, the judge may declare that the disciplinary sanction is unjust.

It is advisable that an internal disciplinary procedure policy includes the behaviors that can be considered as minor, serious or very serious misconduct, the sanctions corresponding to each misconduct, the procedure to be followed by the company to apply the sanctions, guaranteeing the employee's right to defense and the application of the principles of reasonableness and gradualness.

Yes, provided that the applicable collective bargaining agreement does not provide for a special procedure prior to dismissal.

It will depend on how it is regulated in the applicable Collective Bargaining Agreement or in the Company's Internal Policy. As a general rule, the disciplinary measure is applied by the HR personnel representing the Company or even by the employee's boss, on behalf of the Company.

In general, a disciplinary procedure is not required for the application of an oral or written reprimand, unless the collective bargaining agreement or internal rules provide for it.

No, in order to apply a disciplinary measure, it must be clear who has committed the conduct and that it constitutes misconduct. In this case, the employer must initiate an investigation of the facts to identify the employee(s) who committed the misconduct.

Data protection, surveillance and privacy at work

The company has the obligation to look after the health of its workers and avoid this type of situation, therefore, once it receives this type of complaint, it must investigate and adopt the pertinent measures, as established in the applicable collective bargaining agreement or in the company's internal policy.

Yes, employers can establish in their anti-harassment policies the possibility of anonymous reporting, because in these cases the complainants may fear retaliation from the harasser.

The Collective Bargaining Agreement may regulate that misconduct outside working hours be sanctioned by the employer when it is related to the work activity. However, as a general rule, the employee's behavior outside working hours and outside the workplace is part of his or her private life, and therefore could not be sanctioned by his or her employer.

What is data protection and what are the basic principles of data protection? It is the protection of the civil liberties and fundamental rights of natural persons, in particular in relation to the processing of their personal data and its impact on their right to protect their honor and their personal and family privacy. Any person processing personal data must comply with the applicable principles of good practice. These state that personal data must be: -processed fairly and lawfully -processed for limited purposes and in an appropriate manner -adequate, relevant and not excessive for the purpose -not kept longer than necessary for the purpose -processed in accordance with the data subjects rights?

Data subjects shall have the right to request and obtain, free of charge, information on the personal data processed by the data controller, the origin of such data and any past or future disclosure of such data. Such information may be obtained in response to a query by simply viewing the data, or in writing, describing the data undergoing processing in a legible and comprehensible copy or photocopy, whether certified or not. Such information shall not contain codes whose interpretation requires specific hardware.

An employer may request an employee's criminal record if the purpose justifies it, but may not have that information in a file.
The personal data processed may only be communicated to third parties for purposes directly related to the legitimate activities of the sender and of the recipient and provided that the data subject gives his prior consent to this. The processing by third parties must be regulated in an agreement which must be in writing or in any other form by which the conclusion and content of the agreement can be verified. Such an agreement must explicitly specify that the processor may only process the data in accordance with the controller's instructions, that it will not apply or use the data for any purpose other than that set out in the agreement, nor disclose them to others, not even for storage.
Personal data concerning health may only be collected, processed or transferred when so provided by law for reasons of general interest or when the data subject expressly consents thereto.
Personal data will be deleted when they are no longer necessary or relevant for the purpose for which they were collected or recorded. They will not be kept in such a way as to identify the data subject for longer than is necessary for the purpose for which they were obtained or recorded.
Employees affected by conduct contrary to data protection law may complain to the Data Protection Agency. If as a result of such breach they suffer any damage or injury to their property or rights they will be entitled to compensation.
The employer may install a video surveillance system, provided that it is carried out with the necessary guarantees, i.e. that it is a justified measure and respects the workers' right to privacy.
The employer may install Internet control methods such as monitoring programs, firewall controls, proxy servers or trackers.

Maternity, paternity, shared paternity and adoption leave and remuneration

Respect for the principle of proportionality of the measure adopted and the employees' right to privacy.

Yes, it is advisable for companies to have a manual or code of conduct, because 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 is not excessive use is transferred to the employee.

Before any dismissal, the employer must establish the rules for the use of telematic means - with absolute or partial prohibitions - and inform the employees that a control will be carried out and the means to be applied to verify the correction of such uses.

Paid maternity, paternity and adoption leave is regulated in the Workers' Statute and in the collective bargaining agreement applicable in each case. In all cases, the amount of the benefit during the leave period will be 100% of the regulatory base.
Maternity leave has a duration of 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 uninterrupted weeks. In cases of adoption, the duration is the same but the 6 weeks immediately after childbirth are not required.
The employee must visit the doctor to certify the birth and request maternity leave. The doctor will issue a maternity report that the employee must submit to the company within 7 days.
Yes, maternity leave, paternity leave and adoption leave allow for the reservation of the job after the legal leave has expired.
The legislation establishes that, when the vacation period coincides with the period of temporary disability derived from maternity, childbirth or breastfeeding, the worker will have the right to enjoy such leave at a different time from the disability. That is to say, you will be able to enjoy the vacations once the temporary incapacity ends. These vacations can be enjoyed even in the calendar year following the one in which they were taken.
The law clearly establishes the cases in which the regulatory base of the subsidy will be modified: -When the minimum contribution base applicable to the worker in the regime in question is modified, and therefore it will be necessary to update its amount as of the date of entry into force of this new minimum base. -When there is an increase in the contribution base, as a consequence of an increase in the salaries of the workers by virtue of a legal provision, collective agreement or court ruling that retrogrades the economic effects to a date prior to the beginning of the break. Maternity, adoption or foster care. -When for the calculation of the subsidy the last contribution base contained in the corporate databases of the system has been taken and subsequently it has been verified that the system does not coincide with the common contribution base for contingencies of the month prior to the start date of the break or sick leave. Therefore, any cause other than the three mentioned will not imply an increase in the regulatory base of the maternity benefit and, therefore, will not imply an increase in the maternity benefit.
During maternity, paternity or adoption leave, the employee will receive the benefit directly from the managing entity (INSS or ISM), which is 100% of the regulatory base. The company must only keep up to date with social security contributions.
Shared leave is a mechanism for both parents to spend time with the family simultaneously or successively and applies both to cases of biological birth and to cases of adoption. The leave granted to the mother, as mentioned above, consists of 16 weeks of which 6 weeks must be taken immediately after the birth and the rest can be distributed at the choice of the mother. However, the law allows that, in the event that both parents work, the mother can cede part of her 16 weeks of leave to the father to be taken after the birth.

Temporary work

The only requirement for dividing the maternity leave period between both parents is that both parents work. It should also be noted that, although she can give up part of her leave period, the mother must complete the 6 weeks of leave immediately after childbirth.
If the worker falls ill during maternity leave, her maternity benefit and protection will prevail in any case during the maternity period. In other words, it is not appropriate to receive both benefits (maternity and temporary disability). The maternity leave period must be exhausted first and, once it has been completed, the worker may apply for temporary disability. The only way to receive both benefits simultaneously is if the worker receives the maternity benefit on a part-time basis.
In this case, a dismissal for business reasons should be equally valid as the dismissal of any other worker. However, the dismissal of pregnant workers or in situations of suspension of the contract due to maternity leave is very delicate due to the very high protection against such situations in our legislation. It is also possible to analyze the specific case and make sure that dismissal is the only option left to the employer. These dismissals have a high risk of being declared null and void with the consequences of the employee's reinstatement to the job and the payment of processing wages. The only way to avoid nullity is that the dismissal has real and objective causes to be made. Otherwise, it could be understood that the dismissal was made simply for being in maternity which constitutes a discriminatory act on the basis of sex.
Temporary contracts are governed by the Workers' Statute and, specifically, by Articles 14 and 15 thereof. Also, Royal Decree 2720/1998, of December 18, 1998, develops the aforementioned Article 15 of the Workers' Statute. For all aspects not regulated in RD 2720/1998, the Workers' Statute applies. At the European level, there is a Framework Agreement on fixed-term employment, entered into on March 18, 1999, published in the Annex to Council Directive 1999/70/EC.

In Spain there are three types of temporary contracts: 1) Contract for work or service: This is a contract agreed for the performance of a specific, independent and autonomous work or service, the performance of which, although limited in time, is in principle of uncertain duration. 2) Temporary contract due to circumstances of production: This is a contract entered into to meet circumstantial market demands, accumulation of tasks or excess of orders, even in the case of the normal activity of the company. 3) Interim Contract: The purpose of this contract is to temporarily replace an employee who is entitled to the reservation of a job position by virtue of law, collective bargaining agreement or individual agreement.

In principle, the only difference between a permanent employee and a temporary employee was the severance pay. The Law provides for an indemnity for permanent employees of 20 days' salary per year worked in the event of justified dismissal for professional reasons and 33 days' salary per year worked in the event of unjustified dismissal. However, the indemnity for temporary employees, in case of termination of the contract (not dismissal) is 12 days' salary per year worked and, in the case of interim contracts, there is no indemnity. Due to this inequality, the Court of Justice of the European Union, in its judgment of September 14, 2016, established that temporary workers must have the same remuneration as permanent employees. This court ruling has yet to be interpreted by the Spanish courts.

Yes, European legislation provides for the application of the principle of non-discrimination to workers with temporary contracts with respect to workers with permanent contracts. In this sense, European law itself establishes non-discrimination in terms of “working conditions”. Therefore, as a general rule, temporary employees must have exactly the same conditions as permanent employees for the same job.
Temporary contracts have a specific indemnity linked to the termination of the causes that justified their entry into force.
In principle, temporary employees should not be counted as dismissals for the purposes of the collective dismissal thresholds provided that (i) such temporary contracts were not fraudulent; and (ii) the termination of the contract was due to the termination of the causes that justified its entry into force.

Absence management

No. Linking one temporary contract after another with the sole motive of avoiding permanent contracts constitutes a fraudulent use of the law. The fraudulent use of temporary contracts will automatically convert the worker's temporary contract into a permanent contract.
The most important aspect to protect the company from an unfair dismissal is to make sure that the temporary contract ends once the causes that generated it have ended. In addition, the Company must give the legal term of notice and indemnity and make the last payments to the employee.
At the end of the term fixed in the contract, the contract must be denounced by either party. If the contract is not denounced and the employee continues to render services after the term indicated in the contract, it will be understood that there is an implicit willingness to convert the contract into an indefinite-term contract.
Royal Legislative Decree 2/2015 approving the Workers' Statute.
This refers to justified absences from work that are repeated over time in certain periods already pre-established by law, which justify the termination of the employment contract for objective causes. Absenteeism differs from unjustified absences by the form of dismissal used. While the former will be based on a mathematical calculation in an objective dismissal, the latter must be carried out with a disciplinary dismissal based on breach of contract. The following will not be computed as absences: absences due to legal strike, legal representation of workers, work accident, maternity, risk during pregnancy and breastfeeding, illnesses caused by pregnancy, childbirth or breastfeeding, paternity, leaves of absence and vacations, among others expressly established in the Law.
Through the Collective Bargaining Agreement the Company will always be able to negotiate flexibility and productivity measures to favor work attendance. In addition, the employer may also require more consistent health controls of its absent employees with their Mutual Insurance Companies, in order to have a better control of their health condition.
Companies must communicate the medical report of the sick leave or the confirmation of the sick leave to the National Institute of Social Security (INSS) within three working days, by means of the Electronic Data Remittance System (RED), or the medical voucher presented to them by the employees. Failure to comply with this obligation may constitute an administrative sanction.
No, if the salary increase has been previously agreed or derives from the applicable collective bargaining agreement. Yes, if the salary increase derives from the fulfillment of individual objectives and the employee's performance evaluation.
Labor legislation has considered absenteeism as one of the objective causes for termination of the employment contract. For this, the employee must incur in absences from work that reach twenty percent of his working days in two consecutive months, provided that the total absence from work in the previous twelve months has reached at least five percent of the total number of working days, or twenty-five percent in four discontinuous months within a period of twelve months.
The employee must provide the employer with a copy of the sick leave or confirmation of sick leave within a maximum of 3 working days from the day on which 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 by the employee, giving rise to the corresponding sanction by the employer.
Taking into account the provisions of the Data Protection Act and in order to ensure the rights to privacy and dignity of employees, employee data are confidential. In this sense, it is necessary for the employer to require the employee's consent.

Age discrimination

The employment relationship may only be terminated due to absenteeism, as established in the Workers' Statute.
Yes, but not justified in his illness, unless he incurs dismissal for absenteeism.
The employer may hire a private detective or use another method to verify whether the employee is in fact complying with the corresponding medical leave or committing social security fraud, in which case the employee's contract could be terminated for gross misconduct.
At the 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 reason for discrimination, it must be subsumed in the constitutional precept as it is an open list. Likewise, the Workers' Statute also establishes the prohibition of discrimination for any reason under threat of nullity. At the European level, we find Article 19 of the Treaty on European Union, the Charter of Fundamental Rights of the European Union and Council Directive 2000/78/EC of November 27, 2000. Finally, at the international level, the prohibition of discrimination is contained in the Universal Declaration of Human Rights and the ILO Convention on Discrimination. Although these provisions do not expressly include age as a factor of discrimination, it has been argued that this is not an exhaustive list and that other grounds of discrimination may also be included.
What are the forms of discrimination and who is protected by the prohibition of age The Spanish Constitution includes, among others, race, birth, sex, religion or opinion as grounds for discrimination. However, Article 14 of the Constitution also mentions “any other personal or social condition or circumstance”. This statement opens the door to the inclusion of other grounds of discrimination, such as age. The prohibition of age discrimination protects anyone who is discriminated against on the basis of age (or any other ground). Thus, regardless of the individual's personal circumstances, the objective situation of being discriminated against is protected.
An employee cannot be dismissed because of his or her age, so any dismissal involving possible age discrimination would be considered null and void by a court of law. The termination of the contract must be justified by causes other than the employee's age.
A claim based on age discrimination implies the nullity of the dismissal. The effect of the null dismissal is the reinstatement of the worker in the same job and with the same working conditions he/she had before the dismissal. Therefore, no severance pay is due but the employee must be paid the wages accrued from the day of dismissal 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, in addition to the aforementioned legal effects, a compensation for damages for having violated a fundamental right. It is important to clarify that both the origin and the amount of the compensation for damages will depend on the specific case. The violation of a fundamental right does not imply automatic compensation.
In principle, Social Security covers disability, health and pension schemes. However, in the case of employer-provided benefits in addition to those already provided by Social Security, the employer is free to offer them to the employees it deems appropriate. However, we do not recommend making such a clear distinction between young and old employees, as this could lead to a possible claim against the company for age discrimination.

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