Spain employment law newsletter - October 2019



I. Terminations

In Spain, as in “2001: A space odyssey”, man beats the machine

On September 23, a Social Court in Las Palmas de Gran Canaria tackled one of the greatest fears of workers today: Will employees whose functions are mechanical and repetitive be replaced by machines? The answer, not at the moment. The court declared that the dismissal of a worker whose duties were going to be automated through IT tools had been unfair.

The judgement declared that automation, as a technical reason for dismissal, does not mean that the right of entrepreneurial freedom to carry out business should prevail over employment rights (minimum wage, working hours, limits on overtime) and the constitutional right to work, even if, by reducing labor costs, competitiveness is increased.

Therefore, the company cannot take advantage of a privileged kind of termination where the employee receives a lower statutory severance compensation than the one for unfair terminations and, therefore, the termination must be declared unfair.

If the arguments of the Court, which can be appealed, are upheld, it could lead to a slowdown in the implementation of the use of new technology in business in favor of traditional working arrangements and, consequently, it could support the maintenance of jobs.

Fair dismissal for having an offensive screensaver

An employee who had a screensaver with an image of Auschwitz was fired not only for having that image but also because when his superior asked him why he had it as a screensaver, the worker replied that the company was managing its business as if it were a concentration camp.

The High Court of Justice of Madrid, in its judgement of 2 June, 2019, decided that both the display on a company’s computer of an image that should be considered offensive itself and the comparison of the company’s employer with the Nazi regime are offensive, serious and guilty infringements. Therefore, it deserves the sanction imposed, especially taking into account that the company is German.

It must be taken into consideration that materials and working tools are the property of the company and that, as a result, the constitutional right of individual freedom of expression cannot prevail over these kind of injuries. In this case, because there was no coherent justification either about the reason for using that screensaver or about the verbal statements made, the disciplinary sanction was considered fair.

What happens if a company in bankruptcy does not attend the trial of a dismissal procedure?

In many cases, companies in bankruptcy that carry out dismissals do not attend oral trials because they consider that, since their causes of extinction are fully justified, their intervention is not necessary.

The Supreme Court has declared in a recent judgement (5 March 2019) that the Salary Guarantee Fund (Fondo de Garantía Salarial; FOGASA) has the capacity to exercise the right to choose between paying the employee severance compensation or reinstating the worker in the event of dismissal, provided that: (i) the company is involved in insolvency proceedings or has been declared insolvent or has disappeared; (ii) the company has not appeared in court; (iii) the holder of the right of option is the employer; and, (iv) FOGASA appears in the proceedings at the time of exercising the option.

Although the Supreme Court judgement allows FOGASA to exercise the aforementioned option, if the company is closed or disappeared, given that readmission in this scenario is unfeasible, there will be no option other than the payment of the compensation. In this way, FOGASA will become the creditor of these amounts against the company. A problem would arise if the activity of the company continued and FOGASA opted for the option of reinstating the employee. The same situation would be applied in the case of the acquisition of a company or an autonomous production under an insolvency process. In this case, the purchaser will have to take care of the procedures filed by terminated employees.

In view of the foregoing, it is advisable for the company to attend the oral proceedings through their legal representation and, in the event that the company or the purchaser could not appear before the Courts, it is necessary to assess whether the FOGASA has not opted for reinstating the employee.

May the company terminate an employee on long-term sickness leave?

A new back-and-forth has occurred in this matter as a result of the resolution of a preliminary ruling by the Court of Justice of the European Union. In this context, the European Court of Justice has traditionally treated temporary sickness leave as a disability. However, our High Court has distinguished both situations. This discrepancy is relevant because their consequences in case of termination are different. In this sense, if a long sickness leave is considered as disability, a termination without legal causes will be declared null and void and the company will have to reinstate the employee, paying the accrued salaries from the termination date. However, if it is not considered as disability, the company may terminate the employee without cause (acknowledging that an unfair termination exists and, in this case, the company should pay the statutory severance compensation).

The Court of Justice of the European Union has ruled that long-term sickness leave must be considered as a disability situation.

Bearing in mind that there is not a concrete definition for long-term sickness leave, and regardless of how the Spanish labor courts may interpret this preliminary ruling, taking into account that up to now a solid case-law does not exist exist, prior to dismissing an employee on long-term sickness leave, it should be analyzed (by comparing other judgements) whether there is a risk that, under this particular situation, would be a Court will declare that it is a null termination.

II. Working time

Is it possible to deduct salary from an employee who is late for work?

A company’s obligation to register working hours has begun to be a source of litigation. In this context, the National High Court (Audiencia Nacional), in its ruling dated June 20, 2019, gave a company the possibility of deducting from the employee’s salary the amount equivalent to the delays in the time of entry evidenced under the timing registration system. The company argued that, since the employee had not rendered services, the prorated amount could be discounted from the salary.

Although the employee argued that he could recover the time because an irregular annual distribution of working time should be applied, since, according to the applicable Collective Bargaining Agreement, such irregular distribution of working time is a company right, this argument was rejected.

Thus, the Court ruled that the deduction of salary is fine because the employee had not rendered the services during the entire daily working time.

Does the company have to show that no overtime has taken place?

Normally employees claiming overtime are the ones that must evidence it. However, on 31 January, 2019, the Superior Court of Justice of Santa Cruz de Tenerife () reversed the burden of proof when overtime is a common practice in the company.

Due to the obligation to register effective working time on a daily basis, it is easier for a company to prove whether or not overtime has really been carried out, transferring the burden of proof to the company, which is the one which must implement and keep the time register.

Although it is true that the aforementioned ruling is applicable to a case in which overtime is frequently carried out, it could also be applied to other cases where the working day is extended on an occasional basis, exceeding the annual amount established by the applicable collective bargaining agreement.

In this regard, it should be highlighted that, in general terms, overtime is the time that the employee, voluntarily, decides to carry out the duties expressly instructed by the company.

Is the time an employee spends attending a company’s business events considered as effective working time?

The Supreme Court, in its judgment of 19 March, 2019, established that attendance at corporate business events outside working time must be considered as an extension of the employees’ working schedule. Thus, the working time rules stated under the Employment Legislation and the Collective Bargaining Agreements must be applied.

Therefore, if a company requires the employee’s attendance at events outside working time and the employee accepts it, regardless of the activity performed, such hours will be considered as effective working time for the purpose of calculating the annual working schedule.

In order to prevent such working time being considered as overtime, the company may compensate the hours spent on assisting at these events with rest periods. In any case, it must be borne in mind that, in general terms, overtime exists when the annual working hours stated under the applicable collective bargaining agreement are exceeded.

III. Employees’ protection on fundamental rights

Is it workplace harassment not to give work to an employee?

On May 6, 2019, the Constitutional Court issued a judgment in which it ruled that a prolonged lack of effective occupation and, in particular, professional inactivity for a year and a half, should be considered as an infringement of an employee’s fundamental right to moral integrity and must be treated as moral harassment. In this sense, the degrading treatment of the employee (by not providing him/her with effective duties) complies with the requirement to prove that moral harassment exists.

In this sense, the employee, due to the lack of effective occupation, may have the right to terminate his/her employment contract, receiving the statutory compensation for unfair dismissal (or, if higher, the one stipulated in the employment contract), as well as an additional compensation for damages.

Is your company obliged to implement a reporting channel?

In October, 2019, the European Parliament approved the Whistleblower Protection Directive. The Directive, which has to be implemented in Spain within two years, establishes that companies with more than 50 employees and public legal entities have to create effective and efficient reporting channels for people to speak up when situations involving wrongdoing exist within the company. These channels will have to include internal and external procedures for reporting to public authorities.

The Directive highlights the key points that the procedures should include as well as how the follow-up of the reports must be implemented. In addition, it is stated that the reporting channel must be applicable to every individual who is linked with the company or the public entity (e.g. workers, trainees, suppliers, freelancers, shareholders, etc.).

This obligation to implement the reporting channels is crucial to carry out a successful internal investigation. Moreover, in the event that the company finds itself in a situation of corporate wrongdoing, it can be held that the necessary means to prevent this kind of situation have been implemented. It could mitigate a penalty risk or, even, its liability. In addition, implementing as soon as possible the reporting channel according to the requirements set forth in the Directive will contribute to the establishment of a better business culture and will improve the working environment and also the company’s image before customers and potential investors by showing that it follows ethical and transparency commitments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.