The Spanish Constitution, the Workers’ Statute, and European Directives prohibit terminations motivated by discriminatory reasons. Such prohibited discriminatory reasons may involve characteristics such as age, incapacity, birth, race, origin, racial or ethnic background, civil status, sex, religion, political opinion, sexual orientation, or another other personal or social condition or circumstance.
The Workers’ Statute specifically prohibits discrimination in labour relations. Practically speaking, this means that a foreign national beginning a new company in Spain may not include any discriminatory clauses in any of his or her employment contracts. If termination occurs because of a discriminatory reason, the termination will most likely be considered null by a court, and some severance pay and reinstatement of employment will result.
The Spanish Law 4/2000 of January 11 regarding foreign nationals’ rights also strictly prohibits discrimination against foreign-national employees in the workplace. Likewise, this Law outlines sanctions that may be imposed upon employers who commit violations of the Spanish Constitution by allowing discriminatory practices in the workplace. If the wrongdoing does not rise to the severity of the sanctions described in the Spanish Penal Code, such improper conduct by an employer will be regulated by the sanctions in the Spanish Law 4/2000 of January 11.
Furthermore, Spanish employment law provides special requirements for employers regarding their relationships with handicapped employees. Most importantly, the Spanish Law on the Social Integration of Handicapped Persons requires, as a general rule, that companies with more than 50 employees ensure that at least 2% of such employees hired are handicapped/disabled. The purpose of this general rule is to further the integration of such handicapped persons into the Spanish workplace.
Oftentimes, private companies want to know what the exceptions are to this Law, and if they qualify for any such exceptions. There are two exceptions to the general 50+ employee/2% rule. The first exception exempts private companies from the general 2% rule where such companies make donations (based on a certain formula explained in the Law) to organizations that collaborate with handicapped persons. The second exception excuses private companies from the general 2% rule if the private company seeks a declaration of exception. To obtain this declaration from the Spanish National Institute of Labor, the private company must (1) fill out an application for the declaration of exception and (2) submit a report with the application explaining why -for organizational, production, economic, or other reasons -it is impossible for the private company to contract such handicapped persons to satisfy the general 2% rule.
On a sincere note, both the Law and the application are vague on just what needs to be contained within the report, so it is advisable that a foreign national beginning a new company with more than 50 employees attempt to comply with the general 2% rule. But such foreign nationals should keep in mind that this general 2% rule will only be triggered when the new company employs at least 50 or more employees.
Melanie Glover
For additional information on the regulation of discrimination in Spain,
