Significant modifications to the employment contract
In Spain, the Workers’ Statute governs major modifications to employment contracts.
In Spain, modifications to the workday, working schedule and its distribution, alternate work systems, or remuneration and salary or promotion systems, are considered significant.
Article 41 of the Workers’ Statute establishes the different cases, implemented by the employer, that modify work conditions, as well as their requirements and procedures. It should be noted that the current wording of the provision is the result of changes made by the Royal Decree-Law 3/2012 of 10th February 2012 on urgent measures to reform the labour market in Spain.
Required conditions for significant modification to work conditions
It is important to note that the Worker’ Statute enables the employer to modify given aspects of work conditions on the individual level as well as on the collective level, as long as these modifications are justified by economic, technical, organizational or production reasons. The law recognizes the reasons linked to competition, productivity, or technical or labour organization.
Types of Significant modifications to work conditions
Paragraph 1 of Article 41 establishes a non-exhaustive list of subjects whose modification will be considered as a significant modification to work conditions: (i) working hours (ii) distribution of work schedule (iii) Alternate work system (iv) remuneration and salary system (v) work and performance system and (vi) functions that exceed the limits of functional mobility as defined in Article 39 of the Worker’ Statute
These previous changes may affect the conditions contained in the employment contract, the collective agreements or pacts, or unilateral decisions of the employer with collective effects.
Communication of the decision on significant modifications to work conditions
The process to communicate the decision of a significant modification to employee work conditions, as well as deadlines and actions, will be subject to scope of the modification: whether this modification reaches the threshold of a collective modification.
The Worker’ Statute ascribes a collective character to the modifications when they reach a given proportion of workers.
- In companies staffed with less than 100 employees: the measure should affect at least 10 employees
- In companies staffed between 100 and 300 employees: the measure should affect 10% of the employees
- In the biggest firms, the measure should affect 30 employees.
In the non-collective framework (individual), the employer’s decision to change any significant condition should be communicated to the employee and his or her legal representative within 10 days prior to the effective date of the change.
In regards to communication in a collective framework, a 15 days consultation period will be opened to debate the circumstances motivating such a change. This consultation period can be replaced at any time by a mediation or arbitration to seek agreement between the employer and the workers. If, the consultations end without any agreement between the parties, the decision on the significant modifications to work conditions will take effect 7 days after notification to the employees of the consultation results. Otherwise, the agreement reached between the employer and the workers’ representatives will be effective.
Opportunities available to the employees (individual framework)
The Worker’ Statute gives individual employees three claims of action in response to significant modifications to work conditions.
The employees can either accept the decision, go before a labour court or terminate their employment contract (except in cases where the modification is to the work and performance system) and receive 20 days’ salary compensation per year of service (corresponding to monthly apportionment)for a maximum of 20 monthly instalments.
Opportunities available to the employees (collective framework)
In collective cases, the employees have the ability to bring a class action in addition to individual claims before the labour court (mentioned above). It is important to note that individual actions will be suspended by the class action brought.
This article is not considered as legal advice