In the Spanish labour sphere, it is common for employment contracts and collective bargaining agreements to include certain clauses regulating the obligations and behaviour expected of employees. An important question is whether these clauses may contain specific causes which, in case of non-compliance, may justify a fair dismissal.
Legal framework and regulation
The possibility of including this type of clause is based on the Statute of Workers, which is the basic law governing employment relationships in Spain. In particular, dismissal for causes specified in the contract is regulated in Article 49 of the Statute, where the causes that may justify termination of the employment contract are established, such as dismissal, force majeure, resignation of the employee, etc.
Both the individual employment contract and the collective bargaining agreement may detail the standards of conduct, objectives, codes of ethics or internal policies (such as dress code) that the worker must respect. Consequently, failure to comply with these rules, provided they are proportionate, clear and known to the employee, may be considered a justified cause for dismissal if this has been agreed in the contract.
Characteristics and requirements of these clauses
In order for a clause to be effective as a ground for a fair dismissal, it must meet several requirements:
- Clarity and precision: The clause should be drafted in a clear, specific and unambiguous manner, so that the worker knows exactly what behaviour is prohibited or what objectives must be met.
- Prior notification: The employee should have access to the contract, agreement or document containing these clauses before taking up the post or, where appropriate, when the conditions are modified, so that he/she can formally accept and be aware of them.
- Proportionality: The sanction, up to and including dismissal, must be proportionate to the breach. Not just any misconduct justifies dismissal, but those considered serious or very serious according to legislation and case law.
- Adaptation to current regulations: The clauses must respect the fundamental rights and guarantees of workers, as well as the rules of equality, non-discrimination and respect for dignity.
Registration and validity
- Employment contracts: The clauses incorporated in the contract are part of the bilateral agreement between employer and employee. A signed copy must be given to the employee and kept for possible claims.
- Collective agreements: For collective agreement clauses to be binding, they must be duly negotiated and registered with the relevant official bodies, such as the Register of Collective Bargaining Agreements. These agreements have a territorial, sectoral or company scope and compliance with them is mandatory for all parties involved.
Procedure in the event of non-compliance
If an employee breaches a terminable clause, the company must follow the legal procedure for disciplinary dismissal. This involves:
- Notify the employee in writing, detailing the facts giving rise to the dismissal and the date on which it is to take effect.
- Ensure the right of defence and the right to make representations.
- Respect the deadlines and formalities established by law.
The breach must be proven, otherwise the dismissal could be declared unfair or null and void.
In summary, Spanish law allows both the employment contract and the collective bargaining agreement to include clauses that, if breached, may justify fair dismissal. However, for these clauses to be valid and enforceable, they must be clear, communicated, proportional and respect the rights of the worker. In addition, the dismissal process must be in strict compliance with the regulations to avoid challenges and sanctions.
For companies and workers, it is essential to have specialised legal advice to draft and apply these clauses correctly, thus ensuring fair and secure labour relations.
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