# Employment Law in Spain



## RPW (May 20, 2011)

Hi,

I've just found out I've been fired, so I need some help from anyone with experience with this in Spain. 

The story goes:

1) I have a contrato indefinido.

2) Last year I joined a new start-up firm. Pay conditions-wise, they offered me a nomina, but also would supplement my income under the table ("UTT"), as it saved them money in social security payments. (I would have preferred it all above board.)

3) Cut to this year: 4 days before my August pay-day they told me of their desire to go fully legal. As this would affect my pay & contract, they gave me two options:

i) Have the UTT money be put through "officially"
ii) Have the UTT money put through my girlfriend's Autonoma account

I responded that so the first would be fine, but that, if the money couldn't be found to make up the difference, then a reduction of my working hours would be appreciated. (By going legal, I would incur a 25% reduction of my income.)

My boss didn't like this and insisted that I took the second option. I said no. And laid out my case why I wouldn't use my girlfriend's Autonoma account, detailing my position with regards to pay. And said that if my counter offer couldn't be accepted, he should give me other options to discuss. 

4) On payday (August 29th) I received my nomina, and a message informing me that they were going legal as of August 1st, so I need to make a decision about my pay. I shot off a strongly worded email, telling them that I had worked through August under the impression that the old circumstances were in place, and that they owe me this money. He grudgingly paid the difference.

5) Between August 30th and yesterday, I'd been emailing my boss with requests for options with regards to the future changes in my contract. Each time he responded with demands that I go to Madrid for a meeting. I refused, stating that my position is in my emails and until he answered each of my questions we have nothing to talk about face to face. My Spanish isn't great, neither is his English, so I thought email would be the best medium for this discussion. The company works in English.

6) This morning (Sept 2nd) I couldn't access my work inbox. I wrote to them and asked if there was a problem with the server. 10 mins later my girlfriend gets an email stating that I've been fired because my emails were an offense to my boss. (I should point out that I never lowered myself to name calling or affronts. I made sure that my emails were "bland" and full of facts for him to respond to point by point.)

So, my question is, how best should I go forward with this? Do I have a leg to stand on in terms of defending myself?

Thanks a lot in advance


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## mrypg9 (Apr 26, 2008)

My first question is, as always in these situations: are you in a Union?


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## RPW (May 20, 2011)

mrypg9 said:


> My first question is, as always in these situations: are you in a Union?


That would be a no... I take it that this will hugely affect any options I have?


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## mrypg9 (Apr 26, 2008)

RPW said:


> That would be a no... I take it that this will hugely affect any options I have?


No, it won't affect your options. But you would have been able to get help, legal advice and representation in any proceedings or negotiations with your employer.


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## RPW (May 20, 2011)

mrypg9 said:


> No, it won't affect your options. But you would have been able to get help, legal advice and representation in any proceedings or negotiations with your employer.


True - I'm looking around for any sort of Ombudsman that may be able to mediate, but I'm not holding my breath. (There is a "Defensor del Pueblo", but I think that's aimed more at civil issues.)


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## mrypg9 (Apr 26, 2008)

RPW said:


> True - I'm looking around for any sort of Ombudsman that may be able to mediate, but I'm not holding my breath. (There is a "Defensor del Pueblo", but I think that's aimed more at civil issues.)


Pesky knows about these things. She'll give advice if she can. I think there is an organisation which can help.
It sounds as if your employer has been acting illegally both prior to and including your dismissal. You may have some 'leverage' over him. He may be counting on the fact that you are foreign and assume you are ignorant of your rights.
My advice: join a Union. Next time you'll have some sort of shield!


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## Guest (Sep 2, 2011)

mrypg9 said:


> No, it won't affect your options. But you would have been able to get help, legal advice and representation in any proceedings or negotiations with your employer.


If I were the OP, I'd *still* go to a union. I've been able to get help through UGT _and_ ANPE through the past and I'm not affiliated.


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## mrypg9 (Apr 26, 2008)

halydia said:


> If I were the OP, I'd *still* go to a union. I've been able to get help through UGT _and_ ANPE through the past and I'm not affiliated.


Yes, you're probably right. My Union helps non-members.
I'd prefer it if people joined *before *they hit trouble, though....
The Union Officers who give support and advice, as well as all the other services most Unions offer, such as training, have to be paid for and their pay comes via members' subscriptions.
To me, joining a Union/Professional Association (union under a 'posh' name) is as important as insuring your car and house.


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## RPW (May 20, 2011)

Thanks both. I feel kind of sleazy for running to the AGT without making payments beforehand. Hopefully the discussion over my Finiquito will quieten any desire to do so. :boxing:

I'll also wait to see what others have to say. I'd been warned about "empresarios" before, but I thought that they couldn't be _that_ bad.


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## mrypg9 (Apr 26, 2008)

RPW said:


> Thanks both. I feel kind of sleazy for running to the AGT without making payments beforehand. Hopefully the discussion over my Finiquito will quieten any desire to do so. :boxing:
> 
> I'll also wait to see what others have to say. I'd been warned about "empresarios" before, but I thought that they couldn't be _that_ bad.


Don't feel bad....if you need to, go to the AGT, ask for advice ....and join up.
Then you'll feel more secure if you run into any difficulties in future.


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## leedsutdgem (Jun 3, 2010)

I went through a union and wasnt affiliated. They have their own lawyers who can help you.


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## Pesky Wesky (May 10, 2009)

halydia said:


> If I were the OP, I'd *still* go to a union. I've been able to get help through UGT _and_ ANPE through the past and I'm not affiliated.


PW doesn't know very much about this kind of thing actually, but I'd go along with Halydia on going to a union anyway because I think they'll be able to get you started.
Also, it may be worth a trip to the local *INEM* (employment office). They're probably not going to tell you what legal action you take against your employer, but they can tell you what you have to do to get unemployment benefit and how much money you can expect. You can also find out if your employer has been declaring what he should have been declaring as you can ask them for, or they will do automatically, an* Hoja de Vida Laboral*. This is a piece of paper that tells you where you've been employed, the dates when you were paying into social security and the total number of days you have accrued. 
As for taking your employer to court, even if you can, think about the cost and how long it will take you. It may not be worth your while. I think you'd have to have at least an initial meeting a lawyer???


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## mrypg9 (Apr 26, 2008)

leedsutdgem said:


> I went through a union and wasnt affiliated. They have their own lawyers who can help you.


But as I said in my previous post...how are these lawyers paid for?
The answer is as I pointed out *by members' subscriptions.*
As you apparently got a freebie, I hope you joined???
As someone who has done a lot of case work for my Union members I would never refuse to help a non-member in trouble.
But I would expect anyone who has received free legal advice - which is available because other people have paid for it via their subscriptions - to do the decent thing and show appreciation by signing up likewise.


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## mrypg9 (Apr 26, 2008)

Pesky Wesky said:


> PW doesn't know very much about this kind of thing actually, but I'd go along with Halydia on going to a union anyway because I think they'll be able to get you started.
> Also, it may be worth a trip to the local *INEM* (employment office). They're probably not going to tell you what legal action you take against your employer, but they can tell you what you have to do to get unemployment benefit and how much money you can expect. You can also find out if your employer has been declaring what he should have been declaring as you can ask them for, or they will do automatically, an* Hoja de Vida Laboral*. This is a piece of paper that tells you where you've been employed, the dates when you were paying into social security and the total number of days you have accrued.
> As for taking your employer to court, even if you can, think about the cost and how long it will take you. It may not be worth your while. I think you'd have to have at least an initial meeting a lawyer???



I said you'd know and would help...you do and you did!!


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## baldilocks (Mar 7, 2010)

RPW said:


> Thanks both. I feel kind of sleazy for running to the AGT without making payments beforehand. Hopefully the discussion over my Finiquito will quieten any desire to do so.


You might want to consider, when applying to the Union for assistance, offering something on account of your not having paid membership dues in the past. It may well (may not) be declined but it will show that you DO appreciate whatever help they can give you.


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## jimenato (Nov 21, 2009)

Am I alone in thinking that any authority might find that RPW is at least complicit and possibly as culpable as the employer in the matter of the UTT payments?


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## xabiaxica (Jun 23, 2009)

jimenato said:


> Am I alone in thinking that any authority might find that RPW is at least complicit and possibly as culpable as the employer in the matter of the UTT payments?


yes, they might - & I dare say the employer is counting on that very fact


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## Pesky Wesky (May 10, 2009)

jimenato said:


> Am I alone in thinking that any authority might find that RPW is at least complicit and possibly as culpable as the employer in the matter of the UTT payments?


I just assumed that RPW would keep stum (or schtum as the case might be) about the UTT payments. After all, that's why they are UTT.
I also assumed that his grievance with his/ her employer was the way he was sacked...

Perhaps I assumed wrong


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## baldilocks (Mar 7, 2010)

jimenato said:


> Am I alone in thinking that any authority might find that RPW is at least complicit and possibly as culpable as the employer in the matter of the UTT payments?


I was thinking on the same lines but, not having been there at the time and not knowing just how desperate OP was to get a job, I didn't want to criticise, since in a needy situation, if the employer made it a stipulation, I'm not sure that I (nor anyone else for that matter) might not have put principles to one side and gone along with it.


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## xabiaxica (Jun 23, 2009)

Pesky Wesky said:


> I just assumed that RPW would keep stum (or schtum as the case might be) about the UTT payments. After all, that's why they are UTT.
> I also assumed that his grievance with his/ her employer was the way he was sacked...
> 
> Perhaps I assumed wrong


I'm sure he would 


but would the former employer?

it could show that he was complicit, & happy to take them previuosly


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## Pesky Wesky (May 10, 2009)

xabiachica said:


> I'm sure he would
> 
> 
> but would the former employer?
> ...


Well, the way I see it either one can "tell" on either one, can't they? Or put another way if one of them tells, they are also putting themselves in mire.


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## mrypg9 (Apr 26, 2008)

But what if the employer put pressure on the employee to accept this arrangement?
I agree though, it's not something we as employers would ever have consented to.
But deperate times bring desparate measures...


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## xabiaxica (Jun 23, 2009)

Pesky Wesky said:


> Well, the way I see it either one can "tell" on either one, can't they? Or put another way if one of them tells, they are also putting themselves in mire.


true enough

I wonder who would be in the deeper mire?

the guy who needed a job & took it on any terms because he was desperate, or the employer who fiddled, well, everyone really............


maybe the OP shouldn't keep shtum ...............


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## Pesky Wesky (May 10, 2009)

xabiachica said:


> true enough
> 
> I wonder who would be in the deeper mire?
> 
> ...


Good point, but given the circumstances ie foreign country, not fluent in the language, slow legal system etc...

Or perhaps not, I don't know


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## xabiaxica (Jun 23, 2009)

Pesky Wesky said:


> Good point, but given the circumstances ie foreign country, not fluent in the language, slow legal system etc...
> 
> Or perhaps not, I don't know


neither do I.........which actually brings me to my first thought when I saw the OP's post - didn't at the time have time to reply (translating legal stuff would you believe!)

he really needs to see a lawyer for proper advice - you can usually get a first appointment quite cheaply


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## Pesky Wesky (May 10, 2009)

xabiachica said:


> neither do I.........which actually brings me to my first thought when I saw the OP's post - didn't at the time have time to reply (translating legal stuff would you believe!)
> 
> he really needs to see a lawyer for proper advice - you can usually get a first appointment quite cheaply


Yes, unions, lawyer and INEM. I forgot to say in my first post that there's a time limit on going to INEM to claim benefit, so the earlier the better.


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## leedsutdgem (Jun 3, 2010)

mrypg9 said:


> But as I said in my previous post...how are these lawyers paid for?
> The answer is as I pointed out by members' subscriptions.
> As you apparently got a freebie, I hope you joined???
> As someone who has done a lot of case work for my Union members I would never refuse to help a non-member in trouble.
> But I would expect anyone who has received free legal advice - which is available because other people have paid for it via their subscriptions - to do the decent thing and show appreciation by signing up likewise.


Well after a consultation with the union guy he determined whether or not i had a case which i did and they then took i think 8% of what i got. But at least they can tell the op if he has a case.


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## leedsutdgem (Jun 3, 2010)

Pesky Wesky said:


> Yes, unions, lawyer and INEM. I forgot to say in my first post that there's a time limit on going to INEM to claim benefit, so the earlier the better.


The time limit is 15 days


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## mrypg9 (Apr 26, 2008)

leedsutdgem said:


> Well after a consultation with the union guy he determined whether or not i had a case which i did and they then took i think 8% of what i got. But at least they can tell the op if he has a case.



And after the Union had helped you win your case, of course you joined.
That way you knew you were protected if anything adverse should occur again.


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## agua642 (May 24, 2009)

Just a thought, legal aid is available in Spain, maybe you will be entitled...


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## RPW (May 20, 2011)

Thanks everyone for the advice (I'm going to click through some "likes" for you all )

With regards to the complicity, I'm fully aware of this; even though I have emails where they make it pretty clear that "it's this way or no job", I still don't think I'm covered sufficiently.

Update on the situation: I got an email yesterday after I asked him to confirm that I'm being fired, and the reasons. He's sending me two pieces of paper to sign in order to get compensation.

On one, he's admitted to "despido improcedente" (under article 56.2 of el estatuto de los trabajadores), and he wants me to sign a agreement to this, and lists my compensation.

On the other letter, he's citing "despido disciplinario" (under article 54.2.b of el estatuto de los trabajadores, which states I'm being fired for disobedience). And goes on to say that following my firing I'll no longer use the image or name of the empresa, blah blah blah. He wants me to sign this.

So, I'm being fired unfairly and fairly?! 

I realize that the second point is so he can save some face, but I wonder if it will affect me going forward for employment (as I stated originally, I've never lowered myself to name calling or affronting him, though I realize that my not accepting the option of him paying me through my g/friend's autonoma account he's taken that as an affront).

Monday, I'm off to my local INEM office, and I'll also write to the UGT and see if I can get some legal advice, though I'll take Baldilocks's advice and offer something upfront - it is only fair.

Thanks again everyone, I really appreciate the help.


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## jojo (Sep 20, 2007)

RPW said:


> Thanks everyone for the advice (I'm going to click through some "likes" for you all )
> 
> With regards to the complicity, I'm fully aware of this; even though I have emails where they make it pretty clear that "it's this way or no job", I still don't think I'm covered sufficiently.
> 
> ...


If you get the chance, let us know how you get on

Good luck

Jo xxx


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## Guest (Sep 3, 2011)

RPW said:


> Thanks both. I feel kind of sleazy for running to the AGT without making payments beforehand. Hopefully the discussion over my Finiquito will quieten any desire to do so. :boxing:
> 
> I'll also wait to see what others have to say. I'd been warned about "empresarios" before, but I thought that they couldn't be _that_ bad.


This only comes out right in Spanish...

_Que poca jeta tienes..._

Don´t worry about it. Go. They can help.

EDIT: Just read your last post. Glad to hear you'll be talking to UGT!


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## RPW (May 20, 2011)

Update#2:

It turns out that one of our neighbours is an asesor, so I decided to go and speak with him before doing anything further.

It seems that the "double firing" (fair & unfair) is common in Spain. My employer's first letter (where he states I'm being fired for disobedience), is what they would like to to fire me for, but, by admitting an unfair dismissal in my second letter, they're stating that there is no proof, and would just want rid of me.

It doesn't affect my status going forward in search of employment, and would only be useful if I were fighting to keep my position.

My neighbour will now be handling my case, of which I'll be paying from the compensation (in reality, it'll just be a few letters and general advice).

Now, I'm off to find a job teaching (getting a TEFL is probably the best thing to do if you're moving to Spain).


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## leedsutdgem (Jun 3, 2010)

mrypg9 said:


> And after the Union had helped you win your case, of course you joined.
> That way you knew you were protected if anything adverse should occur again.


Off course i joined 


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