# Labour Laws



## mrypg9 (Apr 26, 2008)

Does anyone know if there is a law relating to Constructive Dismissal in Spain, along the UK model?
I'm sure there must be but have been asked for advice by a friend and I don't like giving opinions on things about which I know...nada


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## Justina (Jan 25, 2013)

*Dismissal*



mrypg9 said:


> Does anyone know if there is a law relating to Constructive Dismissal in Spain, along the UK model?
> I'm sure there must be but have been asked for advice by a friend and I don't like giving opinions on things about which I know...nada


Know nothing about UK laws, but a worker in a school where my daughter worked in Seville got thrown out and took the school for unfair dismissal. It took over a year but she did get a very nice lump sum.


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## Lynn R (Feb 21, 2014)

mrypg9 said:


> Does anyone know if there is a law relating to Constructive Dismissal in Spain, along the UK model?
> I'm sure there must be but have been asked for advice by a friend and I don't like giving opinions on things about which I know...nada


I probably know even less than nada about it, but have had a look and having read a few different items about employment law in Spain (example below) I could not find any reference to constructive dismissal at all, so perhaps it's not a concept enshrined in Spanish law? As I know you will be familiar with, they are cases which are notoriously difficult to win.


Working as an employee in Spain. Legal advice by our English-speaking lawyers | iAbogado


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## Claire la richarde (Jul 6, 2009)

The European Commission has a document called "Termination of employment relationships: Legal situation in the Member States of the European Union" which can be downloaded from here ec.europa.eu/social/BlobServlet?docId=4623&langId=en - although Lynn R may already have looked at it before posting.

Of course it's a broad overview, and specific advice for Spain is best obtained from a Spanish qualified lawyer.

Anway, the document does deal with constructive dismissal, saying in the Executive Summary 
"“Contrived resignation” 
13. Some legal orders recognise the concept of “contrived resignation” or constructive dismissal that is indirect dismissal based in particular on fraudulent moves by the employer obliging the worker to resign; by covering up the dismissal the employer evades the legal arrangements which should have applied.

This concept is unknown in a number of national systems and where it does exist the related legal arrangements are also somewhat disparate. It gives rise to major difficulties in relation to the burden or proof."

It lists the ways of terminating an employment relationship in the various member states, and "constructive dismissal" is listed for some, but not Spain.

One section, 3.3.1, deals with "Dismissal contrary to certain specified rights or civil liberties" and says:
"In Spain:
- dismissal may not be based on discrimination prohibited in the Constitution or by law on such grounds as origin, race, sex, religion, opinion, marital status, age, social condition, sexual
orientation, language, being a member of a trade union or disablement;
- dismissal may not be based on grounds contrary to the employee’s fundamental rights or public liberties (e.g. trade union freedom, right to strike); 
- it is prohibited to dismiss:
• employees during temporary absence from work on account of maternity, risks during pregnancy, adoption or fostering,
• pregnant employees, 
• employees who have the right to time off or to reduction of the working day for breast-feeding a child, or because of the legal care of a child or disabled person,
• employees who have the right to time off for taking care of a child or relative,
• female employees who are victims of gender violence exercising their employment rights.

The dismissal may be declared void by the court. Nullity requires immediate reinstatement. An administrative penalty of between €3,005 and €90,152 may be fixed. The burden of proof is on the employer. 

Reasons such as “temporary absence from work on account of sickness or accident” or “the fact that having contracted a particularly serious form of communicable disease” are not fair or legitimate reasons for dismissal. Dismissal for such reasons would be either unfair (if it involved discrimination or violated basic rights) or unjustified (because it is not included in the breaches of the employee’s contract justifying the employer’s decision to dismiss an employee)."


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## mrypg9 (Apr 26, 2008)

Thanks for that. I have a friend who felt she had no alternative other than to give notice to her employer as she was being treated very unfairly in many ways...there must surely be some action she can take to get redress.


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## The Skipper (Nov 26, 2014)

mrypg9 said:


> Thanks for that. I have a friend who felt she had no alternative other than to give notice to her employer as she was being treated very unfairly in many ways...there must surely be some action she can take to get redress.


I have a lot of experience with employment law issues in the UK but know nothing about the Spanish system although I suspect it is similar as the EU tends to be providing the model for each member country to follow. In the UK, the law would normally expect a disgruntled employee to follow the employer's grievance procedure before resigning, unless the circumstances were exceptionally intolerable. If there is such a thing in Spanish companies as a grievance procedure, this would be your friend's best first step.


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## mrypg9 (Apr 26, 2008)

The Skipper said:


> I have a lot of experience with employment law issues in the UK but know nothing about the Spanish system although I suspect it is similar as the EU tends to be providing the model for each member country to follow. In the UK, the law would normally expect a disgruntled employee to follow the employer's grievance procedure before resigning, unless the circumstances were exceptionally intolerable. If there is such a thing in Spanish companies as a grievance procedure, this would be your friend's best first step.


The situation is: two female employees both resigned as they could no longer go on working for the organisation. Both with permanent contracts. One was signed off sick with work related stress induced illnesses - asthma and eczema. Both complaining of sexual harassment, bullying, unreasonable workload...The employer held an enquiry when the employees notified of their grievance but its findings were against the employees and introduced new material, serious allegations against them.
They have good evidence that the employer was aware of their complaints, acknowledged them, failed to act on them other than by the wholly unsatisfactory 'enquiry'.
If this were the UK they'd win hands down, the case would never got to a Tribunal (I did employment work for my union until a couple of years ago and am familiar with case work of this kind).
I can't believe there is no protection for employees here when this kind of thing happens.


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## Claire la richarde (Jul 6, 2009)

An international law firm called Baker & McKenzie appears to have a branch in Spain (Spain | Locations | Baker & McKenzie ) and has a paper http://www.bakermckenzie.com/files/...inationdiscriminationharassmentguide_2009.pdf

Page 318 mentions "a type of constructive dismissal".

Also there is a website called International Comparative Legal Guides, which has a page on Spain here Spain - Employment & Labour Law 2016 · ICLG - International Comparative Legal Guides where paragraph 3.5 mentions "a constructive dismissal".

I don't know whether these are of any help.


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## mrypg9 (Apr 26, 2008)

Claire la richarde said:


> An international law firm called Baker & McKenzie appears to have a branch in Spain (Spain | Locations | Baker & McKenzie ) and has a paper http://www.bakermckenzie.com/files/...inationdiscriminationharassmentguide_2009.pdf
> 
> Page 318 mentions "a type of constructive dismissal".
> 
> ...


Yes...thankyou


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## The Skipper (Nov 26, 2014)

mrypg9 said:


> The situation is: two female employees both resigned as they could no longer go on working for the organisation. Both with permanent contracts. One was signed off sick with work related stress induced illnesses - asthma and eczema. Both complaining of sexual harassment, bullying, unreasonable workload...The employer held an enquiry when the employees notified of their grievance but its findings were against the employees and introduced new material, serious allegations against them.
> They have good evidence that the employer was aware of their complaints, acknowledged them, failed to act on them other than by the wholly unsatisfactory 'enquiry'.
> If this were the UK they'd win hands down, the case would never got to a Tribunal (I did employment work for my union until a couple of years ago and am familiar with case work of this kind).
> I can't believe there is no protection for employees here when this kind of thing happens.


Sounds horrendous and, as you say, a lawyer in the UK would be advising early out-of-court settlement if the evidence was strong, especially as damages in sexual harassment cases are uncapped and often run into six figures where proven. Funding a case is, however, often the problem unless there is a trade union or insurance policy to cover the cost. In the UK home insurance often includes cover for the cost of employment claims. Perhaps it is the same in Spain? Or perhaps a no win, no fee lawyer if they exist in Spain?


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## mrypg9 (Apr 26, 2008)

The Skipper said:


> Sounds horrendous and, as you say, a lawyer in the UK would be advising early out-of-court settlement if the evidence was strong, especially as damages in sexual harassment cases are uncapped and often run into six figures where proven. Funding a case is, however, often the problem unless there is a trade union or insurance policy to cover the cost. In the UK home insurance often includes cover for the cost of employment claims. Perhaps it is the same in Spain? Or perhaps a no win, no fee lawyer if they exist in Spain?


Yes, the evidence is strong, there are e- mails from the employer admitting bullying andharassment and promising action which never materialised.
Both these women speak fluent Spanish (they're British) and will be seeking advice.


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## Turtles (Jan 9, 2011)

The Spanish for constructive dismissal is "mobbing". They think it's an English word, for some reason. I know little about it, although I do know a Spanish woman who won some sort of settlement when she was bullied out of her job.


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## mrypg9 (Apr 26, 2008)

Turtles said:


> The Spanish for constructive dismissal is "mobbing". They think it's an English word, for some reason. I know little about it, although I do know a Spanish woman who won some sort of settlement when she was bullied out of her job.


That's interesting....it would really help these two women ifs you could give away fewdetails. Their lawyer isn't being very helpful.


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## Turtles (Jan 9, 2011)

Googling "mobbing español" gives some interesting results. Acoso laboral is the more correct term.


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## Isobella (Oct 16, 2014)

Friend's Son went to an Asesoria Laboral. I think some are free through INEM but most charge. He won unfair dismissal. It was ruled that the Employer was right to sack him but did not follow the correct procedure. He was awarded about 3 months pay.


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## mrypg9 (Apr 26, 2008)

Isobella said:


> Friend's Son went to an Asesoria Laboral. I think some are free through INEM but most charge. He won unfair dismissal. It was ruled that the Employer was right to sack him but did not follow the correct procedure. He was awarded about 3 months pay.


These two women weren't sacked, though.
I told them ages ago to join a trades union, in their case CCOO, but got the usual 'trades unions aren't for (middle- class) people like us ' response.
Which of course nowadays they are....unions now represent mainly well - paid white collar public sector or financial sector workers.


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