The permanence agreements in companies linked to the workers’ financed training derive from article 21.4 of the Workers’ Statute (Estatuto de los Trabajadores, from now on, ET).
From the literal wording of the article, some requirements stem from this type of agreement:
- The training must be paid for by the company
- The permanence of the worker, in return, cannot exceed two years
- In the event of non-compliance, the employer receives compensation for damages.
Recommendations to guarantee the validity of permanence agreements
Considering the jurisprudence of Spanish courts, in addition to the premises defined by article 21.4 ET, to guarantee the validity of the agreements, companies must observe the following precautions:
- The agreement must be in writing and expressed literally in the employment contract of the worker or an annexe to it (Judgment of the Supreme Court dated 29 December 2000)
- The worker must receive a real professional specialization whose purpose is to implement specific projects or carry out a particular job (Judgment of the Supreme Court dated 26 June 2001)
- The agreement must be based on sufficient cause and meet a balance of interests with a minimum of proportionality between the professional enrichment of the worker and the guarantee of the interests of the company (Judgment of the Supreme Court dated 21 December 2000)
- It is necessary to differentiate between training and specialization when signing the permanence agreement so that the provision of generic and indiscriminate training to all workers cannot be seen as valid in an annexed clause to employment contracts.
Relevant practical considerations
The judicial case-law regarding permanence agreements linked to the financed training of workers has led to pronouncements based on which it is worthwhile to consider some effects and consequences:
- The employee is generally not allowed to terminate his contract unilaterally without cause or to leave without paying a reimbursement for damages linked to the breach of contract
- In the event of a breach of the permanence agreements by the worker, the courts usually calculate the compensation they must pay by way of damages
- In this regard, it is lawful to include a penalty clause in the permanence agreement to establish the compensation. However, the judge may limit it if excessive.
In conclusion, before signing a permanence agreement linked to financed training with an employee, companies must meet both the budgets required by the regulations and the formal requirements to ensure its validity.
This article is not considered as legal advice