Article 21.4 of the Workers’ Statute defines a permanence agreement as follows: when the worker has received professional specialization under the employer to implement certain projects or to perform a specific job, the parties may agree on the continuation of the worker in the company for a specified time. The agreement shall not exceed two years and must be stated in writing. If the employee leaves the job before the deadline, the employer is entitled to compensation for damages.
From this, we must first determine when such agreements are made. As noted above, the Workers’ Statute refers to a professional specialization to implement certain projects or to perform a specific job. Such clauses cannot be included in work contracts if the employer offers all its employees the possibility of one or more training courses whether generically or indiscriminately. To include this type of agreement, the course or specialization must be aimed at implementing specific projects or for specific jobs within the company (judgement of the Spanish Supreme Court dated June 26, 2001).
In any case, and to prevent the provision from being discriminatory and/or void, the worker must receive singular or qualified training that enriches his or her professional value, adheres to the parameters of proportionality and balances the interests of the parties.
An example: A law firm will implement an immigration department and offer one of its workers the opportunity to obtain a specific master’s degree in foreign relations so that the worker can be in charge and direct the immigration department within the company.
What if the employee resigns from the company?
The Workers’ Statute establishes a maximum duration of two years, beginning once the employee completes the course, that the employee must remain with the company. If during this period the employee voluntarily resigns from the company, the employee must adhere to the clause itself. Typically in those cases, as compensation for damages, the employee must reimburse the company the price or cost of the course. This is reflected in the judgements of the Spanish Supreme Court dated 14 February 1991 and 27 March 1991 respectively.
From this, we can conclude that at first the creation of a permanence agreement seems easy, but looking at doctrine and jurisprudence, the course must be oriented to the operation of specific projects within the business environment. The agreement can be made at any time during the term of the employment relationship between the parties, but it must always be in writing.
Failure to comply with the established rules where it is possible to implement, the employer runs the risk that the clause will be declared discriminatory and/or void if it is ultimately determined that the employer wanted to implement the provision to limit the rights that protect all workers from voluntarily resigning from his or her job.
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