In instances where a probationary period is agreed upon (provided the employee has not previously undertaken the same responsibilities within the company under any form of employment contract, rendering the trial period null and void), it must be documented in writing.

The duration of probationary periods may be stipulated in the relevant collective bargaining agreement and can range from 3 to 6 months. However, in the absence of any specific provision in the collective labor agreement, the probation periods are subject to the following limits:

• -Six months for specialists with college and junior college degrees.
• Two months for all other employees.
• For companies with fewer than twenty-five employees, the trial period for non-specialist employees without college or junior college degrees cannot exceed three months.
• One month for temporary fixed-term employment contracts lasting less than six months. Additionally, training contracts, indefinite-term employment contracts supporting entrepreneurs, and special employment contracts (such as domestic workers, senior managers, among others) have their own distinct trial periods.

Throughout the probationary period, either the employer or the employee can terminate the contract freely, without the need to cite or substantiate any cause, without prior notice, and without entitlement to indemnity for either party.

An employee may be assigned to a higher-level position for a maximum of six months. At the end of this period, they must either return to their original work group or be promoted.

If the employee has previously performed the same duties for the employer or in cases of contract subrogation, a probation period is not permissible.

The Spanish working time regulations state that employees must (Workers’ Statute):

• Maintain an average weekly working limit of no more than 40 hours, though maximum working hours may vary based on the Collective Bargaining Agreement.
• Limit daily working hours to a maximum of nine.
• Ensure a minimum rest period of 12 hours before commencing work on the next day.
• During the month of August, the weekly working hours should not exceed 36 (known as ‘jornada intensiva’), with the remaining 4 hours per week (totaling 16 hours for the month) to be distributed throughout the rest of the year. If an employee prefers to work 40 hours per week in August, it is advisable to establish a mutual understanding agreement.

Regarding rest time:

• Employees obligated to work more than six uninterrupted hours are entitled to a minimum 15-minute break.
• Exceptions to these rules may apply to employees in specific industries and designated employment relationships, such as senior executives, security guards, or hospitality workers.
• Employees have the right to an uninterrupted minimum weekly break of one day and a half, which can be accumulated for up to fourteen days, including Saturday afternoon or, where applicable, Monday morning and the entire day of Sunday.

As a general practice, employees may voluntarily accept overtime hours, but specific individuals and applicable collective agreements may warrant exceptions. The company must grant pre-approval for overtime, which is permissible only under the following circumstances:

• To prevent or address accidents, or other extraordinary and urgent damages.
• During peak production periods, unforeseen absences, shift changes, and other situations of a structural nature.

According to statutory law, the total annual overtime hours cannot exceed 80. Additionally, there exists a form of overtime known as force majeure, where overtime is mandatory for employees to prevent or address accidents, or other extraordinary and urgent damages. This particular type of overtime is obligatory for employees and does not count towards the annual maximum limit.

Employers are obligated to provide their employees with two annual “extraordinary bonuses” (‘gratificaciones extraordinarias’). Typically, one bonus is expected to be disbursed during the Christmas season, while the other should be given in a month specified by a relevant collective agreement or a mutually agreed-upon arrangement between the employer and employee representatives. It is worth noting that a collective agreement may outline a provision for the bonuses to be distributed in monthly installments. The specific amount of the bonuses is not prescribed by law; rather, it is left to the discretion of collective agreements to determine. In common practice, each bonus is often equivalent to one month’s salary.

In Spain, bonuses are officially categorized as salary supplements according to Article 26.3 of the Workers’ Statute (‘Estatuto de los Trabajadores’). These additional payments can be tied to either company performance or the achievement of specific objectives by the employee. The company is responsible for establishing the criteria that qualify an employee for a bonus from the outset. It is essential for employers to communicate clearly the conditions and objectives that must be fulfilled for employees to receive a bonus. Despite any lapses in meeting disclosure obligations by the employer, workers are entitled to receive their bonuses.

Given the salary nature of bonuses, they must be factored into the overall compensation in case of dismissal. There are only two scenarios in which a bonus may not be included:

• If both parties have mutually agreed to exclude the bonus.
• The bonus was disbursed under exceptional circumstances, irrespective of meeting specific goals.

The Labor Law mandates that, before terminating an employment agreement, the party initiating the termination must give the other party a minimum of 15 days’ notice. The contractual parties have the option to mutually agree on extended notice periods.

An employee undergoing disciplinary dismissal is not entitled to receive any severance payment from the company unless a court deems the dismissal unfair.

In the case of an objective dismissal, the severance pay is a tax-free amount equivalent to 20 days’ salary per year of service, capped at 12 months’ salary. If the dismissal is adjudged as unfair by the court or acknowledged as such by the company before the conciliation chamber or court, the tax-free severance increases to 33 days’ salary per year of service, with a maximum of 24 months’ pay.

Severance compensation is determined based on two criteria: seniority and daily salary. For both objective and unfair disciplinary dismissals, the severance is computed by multiplying seniority by the daily salary and the specified number of days (20 for objective dismissal, 33 for unfair dismissal). The daily salary is calculated considering the 12 most recent payments, encompassing all salary components, including salary in kind and extra hours. This encompasses bonuses, incentives, and irregular payments, with only extra-salary concepts being excluded. It’s noteworthy that Stock Options are considered part of the salary and are included in the calculation for indemnity.

In accordance with the guidelines established by the European Court of Justice in 2019, companies are required to adopt an objective, dependable, and easily accessible system for recording the daily work performed by each employee.

Definition:

Restrictive Covenants refer to bilateral agreements entered into between an employer and an employee, aiming to safeguard crucial business information. While designed to protect such information, these covenants may be perceived as limiting the right to work and the freedom to choose a profession or trade. Consequently, any restriction on this constitutional right must adhere to the established labor law requirements. In Spain, non-competition rights and obligations are governed by the Statute of Workers.

Types of Restrictive Covenants:

Non-Compete Clauses:

Non-competition agreements aim to prevent employees from engaging in similar work with a competing company or sector post-employment termination. To be valid, a non-compete obligation after the termination of the employment contract (limited to two years for technicians and six months for other workers) must meet two conditions:

• The employer must have a legitimate industrial or commercial interest in imposing the non-compete obligation.
• The employee must receive appropriate economic compensation.

Non-Solicitation of Customers:

While not specifically regulated by Spain’s labor laws, non-solicitation of customers agreements are deemed valid within the framework of the non-compete clause outlined above.

Non-Solicitation of Employees:

Spanish Labor Legislation does not expressly regulate this restriction, but case law recognizes its validity within the scope of the non-compete clause.

Enforcement of Restrictive Covenants — Process and Remedies:

In the event of a breach of the non-competition agreement, the employee is obligated to reimburse the received compensation and may be liable for damages if the company can demonstrate harm. If disputes arise regarding the compensation amount or if the employee refuses to comply, the employer can seek resolution through a social court or an arbitrator (if agreed upon). Similarly, the employee has the option to file a claim if the agreed compensation is not paid, but the non-compete clause remains enforceable. The clause may be declared void if it fails to meet legal requirements, although both parties can mutually agree to cancel the agreement; however, unilateral cancellation or waiver is not permissible.

The Spanish Constitution grants unions the responsibility to advocate for and safeguard the economic interests of workers. Additionally, unions have the authority to act as representatives in collective bargaining and participate in the requisite preliminary conciliation processes before escalating disputes to government conciliation agencies.

Fundamental rights such as freedom of association and representation are enshrined in the Spanish Constitution. Elected representatives represent all employees, excluding senior executives like general managers. Notably, there is no differentiation between blue and white-collar representatives in Spain. The system of employees’ representation varies based on the company’s size, encompassing individual delegates and works councils.

• To address an increase in the company’s workload resulting from market circumstances, backlog of work, or an excess of orders (with a relevant collective agreement identifying applicable activities and specifying the proportion of the workforce that can be employed on fixed-term contracts for this reason).
• For any of the aforementioned justifiable reasons for entering into fixed-term contracts, such contracts can be utilized within 18 months from the emergence of the cause (i.e., 18 months from the onset of increased workload). The maximum duration for a fixed-term contract is 6 months, extendable for another six months (subject to the terms of the Collective Bargaining Agreement). It’s important to note that fixed-term contracts cannot be established for the same position, whether for the same or a different individual.

Typically, the employee will receive an official monthly payslip, known as a ‘nómina,’ by the conclusion of each month. This legally binding document serves as evidence of the contractual relationship between the employer and the employee, documenting the exchange of services and corresponding payment. The employee is required to sign two copies, with one retained by the employer and the other provided to the employee. The payslip is organized into three distinct sections:

• Header, which includes details about the employer and employee.
• Body, containing information pertaining to the worked period, earnings, and deductions.
• Footer, providing information about the rates employed in calculating the payment.

The duration of annual leave is determined by collective bargaining agreements or individual contracts, and it should not be less than 30 natural calendar days (typically equivalent to 23 working days). Financial compensation cannot replace this entitlement. Leave allocation is proportionally reduced for periods of employment lasting less than a year. Ideally, the holiday calendar is collaboratively established by workers and employers within each company.

Regarding carry-over rules, companies typically permit the transfer of unused vacation days from the current year to the first quarter of the following year.

Compensation for sick leave is contingent on the duration of the absence:

• During the initial 3 days of sick leave, the company is responsible for payment.
• From the 4th to the 15th day, the company provides an allowance equivalent to 60% of the calculation basis.
• From the 16th to the 20th day, social security issues an allowance amounting to 60% of the calculation basis.
• Starting from the 21st day, social security provides an allowance of 75% of the calculation basis.

In case of absence due to a workplace accident, the employer initially pays 75% of the salary, subsequently reimbursed by Spain’s National Institute of Social Security. The company disburses the corresponding amount to the worker, and social security refunds this sum to the company.

For Spanish Social Security to cover a portion of the worker’s salary, a minimum contribution period of 180 days’ worth of social security contributions in the previous 5 years must be satisfied, unless the incapacity results from an occupational illness or workplace accident.

The duration of sick leave for a worker is limited to one year, with the National Institute of Social Security (INSS) having the authority to extend it by an additional 6 months if it deems the worker capable of recovery within that timeframe.

It is advisable to consult the collective bargaining agreement, as it may provide more favorable terms than the minimum stipulations outlined above.

Under the following circumstances, employees are eligible to receive their complete salaries for the specified periods:

1. Fifteen calendar days for marriage and registered civil partnerships.
2. Four days of paid leave for force majeure situations, where the employee’s absence is imperative due to urgent and unforeseen family reasons caused by illness or accident.
3. The duration necessary to fulfill a public obligation (e.g., voting or jury duties).
4. One day for relocating to a new residence.
5. Adequate time for tests and examinations before childbirth, as well as training before adoption or fostering, during working hours.
6. For premature births requiring newborn hospitalization, one hour per working day.
7. For breastfeeding children under nine months, employees are entitled to one hour of daily absence, or half an hour at the beginning or end of the working day. This leave can be taken by either the mother or the father if both are employed.
8. In cases of legal guardianship for a child under 12 or a person with a disability, a reduction of the working day by one-eighth to one-half.
9. Time off to meet public and personal obligations (such as jury duty or court appearances), as needed.
10. For trade union or workers’ representation duties, the duration specified by law or collective agreement.

Regardless of the situation, employees must inform the employer in advance and provide proof of the reason for their absence to exercise their right to leave.

Employees have the right to avail themselves of five days of paid leave for a serious accident, illness, hospitalization, or outpatient surgery necessitating recovery at home. This entitlement extends to (i) individuals residing with the employee, (ii) the civil partners of the employee, and (iii) relatives of the civil partner.

Workers are permitted to request leave for the purpose of caring for family members as follows:

• A maximum duration of three years to care for each child.
• One year, extendable through collective bargaining agreements, to care for a blood relation or relation by marriage up to the second degree or similar. This applies to individuals who, due to age, accident, or illness, are incapable of self-care and are not engaged in paid work.

Handicapped Family Member Leave

The Statute of Workers guarantees employees unpaid leave of up to two years to attend to a close family member (parent, child, sibling, grandparent, grandchild, aunt, uncle, first cousin, niece, or nephew). This provision applies when the family member is handicapped or is certified by health authorities as unable to perform basic daily activities without assistance from a third party.

Voluntary Unpaid Leave

Employees with a minimum tenure of one year are entitled to voluntary unpaid leave, ranging from four months to five years. Subsequent to exercising this right, no additional voluntary unpaid leave can be taken for four years. Upon return from unpaid leave, the employee is entitled to reinstatement in their previous professional category, though not necessarily in the same position. The duration of unpaid voluntary leave is not factored into the calculation of seniority.

A recent Royal Decree has introduced a noteworthy change in the realm of paid leaves related to childbirth and adoption, applicable to all instances of births occurring after April 1, 2019. The primary objective of this regulation is to foster genuine equality between men and women in the workplace, actively promoting personal and family life. This entails affording both parents the opportunity to avail themselves of leave for the birth or adoption of a child. Notably, the terminology has shifted from “paternity leave” to “partner leave,” specifically addressing the parent other than the biological mother.

Maternity & Partner Leave: The duration of this combined leave is set at 16 weeks. Both the mother and father are required to take six weeks immediately following the birth or adoption. The remaining ten weeks can be flexibly arranged at the discretion of the parents, allowing them to take leave in one-week blocks until the child reaches twelve months of age. Additionally, the biological mother is eligible to commence maternity leave up to four weeks before the anticipated date of birth.

Unpaid Parental Leave: Employees have the right to up to 8 weeks of unpaid parental leave to care for their biological or foster child, provided the child has been in foster care for more than a year. This leave can be taken until the child reaches the age of eight and can be utilized continuously or in segments, with flexibility, and it cannot be transferred to another individual.

Reduction of Working Hours: Parents, whether mothers or fathers, can request a reduction in working hours if they have a child under the age of 12. During this period, the employee will receive a salary based on the reduced hours worked. Dismissing the employee during this time is prohibited, and any such dismissal can be deemed invalid (“nulo”).

Adoption Rights: Adoptive or foster parents are entitled to six weeks of mandatory uninterrupted leave within the first 12 months after the child joins their family. The law permits an extension of this leave on a voluntary basis for up to 16 weeks for each adoptive parent and an additional two weeks for each additional child. Furthermore, one parent has the option to transfer up to six weeks of their leave to the other parent.

Pregnancy Leave: Pregnant workers have the right to be absent from work, with remuneration, for prenatal examinations, provided they inform their employer in a timely manner.

Nursing Leave: Workers nursing a child under nine months old are entitled to one hour of absence from work, to be chosen by them and dividable into two parts at the beginning and end of the day. The worker must notify the employer fifteen days in advance of their return to regular working hours, and there is an option to accumulate this leave, typically amounting to 15/20 days off.

Female employees are entitled to 26 weeks of maternity leave, which can begin as early as eight weeks before the expected delivery date. The remaining weeks can be taken after childbirth. For women expecting their third child or more, the paid maternity leave duration is 12 weeks, with six weeks before and six weeks after the expected delivery date. Maternity leave is granted with full pay if the employee has completed at least 80 days of service with the employer in the 12 months before her expected delivery date. Maternity benefits are paid at the average daily wage rate for the duration of the absence from work. Additionally, female employees receive a medical bonus of INR 3,500 if health benefits are not provided by the employer. If a woman’s job allows, she may work from home after utilizing maternity benefits, based on mutual agreement between her and the employer.

The law also provides for adoption leave of 12 weeks for women adopting a child under three months old. A commissioning mother, who provides her egg for embryo implantation in another woman, is entitled to 12 weeks of leave from the date the child is handed over to her. The woman giving birth, known as the host or surrogate mother, is not eligible for this leave.

Employers are required to inform female workers of their rights under the Act at the time of appointment, both in writing and electronically.

While paternity leave is offered to government employees, it is not mandated in the private sector, and its provision is at the discretion of the employer.

Every municipality has the authority to designate a maximum of 14 public holidays annually. Among these, the national government selects up to ten, the autonomous community contributes two, and the municipality itself identifies two additional holidays.