Employment law is present in the lives of millions of people, although many do not notice it until a problem arises. It is the branch of law that governs the relationship between the person who works and the person who provides the job, and on it depend everyday matters such as how much you earn, how many hours you work, what happens if you are dismissed or what happens if you have an accident at your workplace.
At BBM Abogados we have been advising employees and companies in Santander and throughout Cantabria on employment law since 1990. In this complete guide we explain, clearly and methodically, what employment law is, how it works and when it is best to have a specialist lawyer.
What employment law is and what it is for
Employment law, or labour law, is the body of rules that governs the relationships between employees working for another and employers, as well as trade union activity and the State’s intervention in the sphere of work.
Its reason for being is simple but fundamental: the relationship between a company and an employee is, from the outset, unequal. The company has the power to manage and organise; the employee depends on their wages to live. Employment law exists precisely to balance that inequality, establishing minimum, non-waivable rights that protect the weaker party. That is why it is said to be protective law.
The sources of employment law
To understand your rights you have to know where they come from. Employment rules are ranked at several levels that apply in a coordinated way.
The Workers’ Statute
This is the basic rule of Spanish employment law. The Workers’ Statute (Estatuto de los Trabajadores) governs the contract, working hours, pay, rest periods, changes to conditions and the termination of the employment relationship, among many other matters. It sets the legal minimums that no company can worsen.
Collective agreements
These are agreements negotiated between the employees’ representatives and the companies for a particular sector or company. The collective agreement develops and improves on the conditions of the Statute: it can set higher pay, more holiday days or specific supplements. Knowing the agreement that applies to you is essential, as it is usually the rule that most closely governs your day-to-day working life.
The employment contract
This is the individual agreement between employee and company. The contract can improve on what is provided in the agreement and the Statute, but it can never worsen it.
This whole system is governed by the principle of the most favourable rule: when several applicable rules apply, the one most beneficial to the employee prevails, except in the matters the law expressly reserves. To this are added the principles of the non-waivability of rights (you cannot validly waive the legal minimums) and the more beneficial condition (consolidated improvements are respected).
The employment relationship: when it exists
Not every provision of services is an employment relationship. For it to be so, four features must be present: voluntariness (you work because you want to), the work being for another (the fruits of your work belong to the company, which bears the risks), dependence (you work within the employer’s sphere of organisation and management) and remuneration (you receive a wage).
This distinction is of great practical importance, because on it depends whether or not the protections of employment law apply. It is the crux of disputes over bogus self-employment, people formally registered as self-employed but who, in reality, work with the features of an employee working for another and who ought to be recognised as employees.
The employment contract
The contract is the starting point of any employment relationship. It sets out the essential conditions: the form, the working hours, the pay, the professional category, the workplace and the duration.
As we saw, after the 2022 labour reform the permanent contract is the reference form and temporary work was reserved for defined grounds. Alongside it there coexist the temporary contract (for production-related circumstances or for substitution), training contracts, part-time work and the permanent seasonal contract. Choosing the right form and drafting the contract correctly avoids many later disputes.
Working hours, pay and working conditions
Two of the aspects that matter most day to day are working hours and pay.
Working hours have legal duration limits, with guaranteed minimum daily and weekly rest periods. Overtime is limited and must be compensated, and the company is obliged to keep a daily record of working hours.
Pay cannot be lower than that set by the collective agreement or, failing that, the National Minimum Wage. It must be paid promptly and documented in a clear payslip. To this are added the extra payments, the salary supplements and other conditions set by each collective agreement.
“At BBM Abogados we defend the interests of individuals and businesses in Santander and Cantabria with a close, rigorous and fully transparent approach. If you have doubts about your case, we help you see it clearly.”
Modification of working conditions
Working conditions are not immutable, but nor can the company change them at will. The law regulates in detail when and how they can be modified.
The substantial modification of working conditions (changes to working hours, timetable, shift arrangements, pay system or duties) requires economic, technical, organisational or production-related grounds, that the employee be notified in advance and, where applicable, that a consultation period be followed. If the modification seriously harms you, you may be entitled to terminate your contract with compensation. Other arrangements, such as geographical mobility (transfers) or functional mobility, also have their own requirements and safeguards.
Termination of the contract: dismissals and compensation
Termination is one of the most delicate moments of the employment relationship, and the one that generates the most queries. The contract can end for many reasons: mutual agreement, the employee’s resignation, the end of the agreed period, retirement or, above all, dismissal.
A dismissal can be disciplinary (for a serious breach by the employee), objective (for economic, technical, organisational or production-related grounds, or for unfitness) or collective (when it affects a significant number of employees). Each type has its own formal and substantive requirements.
Depending on how well it complies with the law, a dismissal can be declared fair, unfair (when the ground is not justified or the requirements are not met, with a right to compensation or reinstatement) or void (when it breaches fundamental rights or affects especially protected employees, with compulsory reinstatement). Challenging a dismissal has a short limitation period of 20 working days, so it is best not to delay.
If you find yourself in this situation, we explain in detail how to act and what you are owed on our page about unfair dismissal in Santander. And when the problem is that the company is in difficulties, the role of the Wage Guarantee Fund (FOGASA) becomes especially important, as it covers certain wage debts and compensation in cases of business insolvency.
Social Security, accidents and incapacities
Employment law does not end with the contract: it extends into the Social Security system, which protects the employee against certain contingencies. The company is obliged to register and pay contributions for its employees, and on those contributions depend benefits as important as unemployment, sick leave, retirement or those arising from accidents.
Workplace accidents and occupational illnesses deserve special attention, because they give rise to specific benefits and, where there is a lack of safety measures, they can lead to liability for the company and even to a surcharge on the benefits. If you have had an accident at your workplace, it is best to act quickly; we advise you on our page about workplace accidents.
When the after-effects of an illness or an accident prevent you from working, the assessment of permanent incapacity in its various degrees comes into play. Correctly claiming the appropriate degree is not always straightforward, which is why it is best to seek advice; we explain it in our section on occupational incapacity.
The employment tribunals: how disputes are resolved
When an employment dispute arises that is not resolved by agreement, you turn to the employment tribunals, a specialised judicial order made up of the employment courts, the High Courts of Justice and, ultimately, the Supreme Court.
Before filing a claim it is usually compulsory to attempt a prior conciliation hearing before the relevant administrative body, with the aim of reaching an agreement and avoiding litigation. It is a process designed to be relatively swift, but it is full of limitation and prescription periods that, if missed, cause the loss of the right to claim. Hence the importance of acting as soon as possible.
The role of the employment lawyer
At this point, the conclusion is clear: employment law is a technical, ever-changing area with demanding deadlines, in which a wrongly taken decision can prove costly. Having an employment lawyer is not an expense but an investment in the defence of your interests.
A good employment lawyer helps you both preventively (reviewing contracts, final settlements or modifications before signing) and reactively (challenging a dismissal, claiming unpaid amounts, handling an incapacity or defending you against a sanction). And they do so knowing not only the law, but also the practice of the courts and the most recent case law.
At BBM Abogados, a leading firm in Santander since 1990, we put that experience at your service, whether you are an employee or a company. If you are facing an employment problem or simply want advice before taking a step, call us on 942 36 10 48 or write to us through our contact page. We will analyse your case and tell you, clearly and straightforwardly, what your options are.