Spain – agediscrimination.info

Sagardoy Abogados

www.sagardoy.com

Overview

Under Spanish law, there is a general principle of equality, which forbids all forms of discrimination. According to Article 14 of the Spanish Constitution, Spaniards are equal before the Law and may not be subjected to any discrimination by reason of birth, race, sex, religion, opinion or any other personal or social circumstances.

And, more explicitly, article 17 of the Workers’ Statute prohibits such discrimination in employment relationships when it provides that collective agreements, pacts or decisions of the employer that directly or indirectly discriminate on the grounds of age are null and void, as are acts of positive or negative discrimination by the employer during employment.

Forms of discrimination can be direct or indirect.

Direct discrimination occurs when a person is treated less favourably than other people in an analogous situation, due to reasons of birth, race, sex, etc. (Articles 9.2, 14, 28.1 and 35.1 Spanish Constitution and 4.2.c), 17, 28, 53.4, 55.5 and 68.c) Workers’ Statute).

Indirect discrimination occurs when an apparently neutral provision, criteria or general rule can put a person of a particular age at a particular disadvantage with respect to other people due to his/her age or other conditions.(Spanish Constitutional Court 145/91)

Spain does not have a specific protection for age based harassment, in line with other grounds of discrimination such as sex, racial, religion belief, sexual orientation. An age harassment claim has to be brought as a direct age discrimination.

Finally, it should be noted that victimisation can arise if an individual is treated less favourably as a result of making allegations or complaints of direct age discrimination or acts as a witness in such proceedings. Indemnity guarantee is not a form of discrimination different from those explained above but it custodies the legal rights enshrined in Article 24 of the Spanish Constitution (the exercise of an action at law, or of preparatory acts prior to such an action, does not carry damaging consequences for the claimant in his or her public or private relations).

Who’s covered?

The general prohibition against discrimination that is laid down in the Constitution extends to all Spanish nationals and foreigners in Spain. However, only employees who work under an ordinary or special employment relationship can seek the protection of the employment courts against direct or indirect discrimination, with the exception of civil servants.

What enforcement/remedies exist?

Discrimination can give rise to cumulative liabilities in various jurisdictions both for the company and its executives.

– Criminal jurisdiction (contained in the Spanish Penal Code (Código Penal), in the chapter on offences against workers’ rights and infringements of the employment legislation classified as crimes, with the specific prohibition against discrimination being governed by Article 313).

It is a criminal offence (Article 314 Criminal Code) if an employer, after receiving an administrative order or sanction for serious discrimination in public or private employment, on the grounds, amongst others, of sex or sexual orientation, to fail to restore the situation of equality before the law by remedying the loss caused.

– Civil jurisdiction (Articles 1101 and 1902 of the Spanish Civil Code (Código Civil), which impose liability in contract and tort.

– Administrative jurisdiction. An employer may breach Regulation RD 5/2000 if it takes unilateral decision, which result in either favourable or unfavourable discrimination in terms of seniority, training and promotion, pay, working time and any other terms of employment, on the grounds of sex, origin, marital status, race, social condition, religious belief, political ideas, membership or non-membership of a trade union, language reasons within the Spanish territory or physical reasons. Breach of Regulation RD 5/2000 is punishable by fines of between EUR 3,005 and EUR 90,151.82.

– Employment jurisdiction. Article 17 of Workers’ Statute provides that any act, collective agreement, individual pact or unilateral employer decision aimed at discrimination will be void. An employee who has been discriminated against may file a claim before the judge to have the discriminatory act declared void and to receive compensation for the loss suffered. There is no cap on the amount of compensation, which can be awarded.

It should also be noticed, from a labour point of view that the Spanish Constitutional Court has confirmed the burden of proof will be reversed in cases of discrimination. Provided the applicant brings evidence indicating that discrimination has occurred, the burden rests on the employer to demonstrate the existence of objective and reasonable grounds, unrelated to any discriminatory intent. Prior to presenting evidence, the employer must prove that the grounds for the decision were reasonable and necessary from a business perspective (Spanish Constitutional Court 135/1990).

The Employment Procedure Act (Ley de Procedimiento Laboral) contains the procedural rules for discrimination cases (specifically Articles 20, 90, 95 and 96).

Claims are usually brought in the administrative and employment jurisdiction.

How common are claims?

It’s true that in Spain we still see it as being remote, because the press has not reported any big discrimination cases that might ring social alarm bells among employers. However, we must not lose sight of the following aspects:

– Discrimination figures in Spain are the same as in the UK, if not higher. There may be percentage differences in relation to the grounds for discrimination: Most discrimination in the Spanish job market is gender-related cause of discrimination, although we are also starting to see a degree of race discrimination, which did not exist a few decades ago along with age discrimination.

According to the findings of a survey conducted by the Trade Union Confederation of Workers’ Commissions (Comisiones Obreras, CC.OO) in 2000, 18% of female Spanish workers felt that their organisational superiors and colleagues invaded their ‘physical space’ with unwanted sexual insinuations, or that they were subject to ‘blackmail’ by superiors who made their future prospects at work dependent on accepting a sexual relationship. The study found that 54% of female workers believed that their work environment was sexually hostile.

Recent research by Juana Mª Serrano (see Collective negotiation in Spain: a vision, C.OO, 2004) draws the following conclusions from an examination of the treatment of sexual harassment in collective agreements

• at national sectoral level, 55% of agreements studied mention ‘sexual harassment’ , and most of these identify it as a very serious offence. However, they fail to define relevant behaviour or sexual harassment itself, or to describe the procedures for reporting it;
• at regional sectoral level, only 25% of agreements examined mention sexual harassment, generally referring to it as a very serious offence, whereas the rest fail to deal with the subject;
• at the provincial sectoral level, 37% of agreements studied explicitly seek to combat sexual harassment, and they tend to regulate it in slightly more detail than national and regional agreements; and
• at the company level, the social partners seem to have little interest in the subject, with only just over 12% of agreements examined mentioning sexual harassment, and defining it as a serious offence. Positive examples of company agreements are reported from the telecommunications sector (Retevisión, Televisión Valenciana, Televisió de Catalunya, Arteixo Telecom, Jesytel, Telefónica Servicios Audiovisuales and Siemens) and the graphic arts, press and paper sector (Diario ABC, Unidad Editorial El Mundo and La Voz de Galicia).

Age discrimination is also a frequent cause of discrimination and is particularly prevalent when looking for a job.

This type of discrimination is also often linked with the termination of the contract of employment, as it is a factor that directly determines the selection of employees in redundancy situations, in most cases with the acquiescence of the employee representatives.

– Since compensation for breaches by the employer or dismissal is capped by law, the way to obtain higher compensation is to add a discrimination claim to the claim for dismissal or some other claim.

– This type of claim is often used simply as a way of forcing the company to negotiate. However, since the compensation is not capped, large sums of money can be claimed to put pressure on the company. This means that the company has to prepare a more elaborate defence for the hearing, which requires a great investment in terms of both time and money.

What claims are most common and what are trickiest issues for employers?

The areas of recruitment and departure are likely to be particularly difficult.

According to article 4.2.c) of the Workers’ Statute, job applicants may not be discriminated against with regards to access to employment.

It is a very serious violation of the prohibition against discrimination if recruitment conditions are advertised, or job offers are made, by any means that limit access to employment on the basis of any of the above grounds.

In order to achieve equality between men and women, the law expressly recognises and promotes affirmative action. Employers who hire workers who face difficulties in finding work, for example, young people, women between 16 and 45 years old, workers over 45 years of age, workers over 55 years old, employment of workers over 60 years old, etc.) are entitled to rebates on employer social security contributions.

For 2006, the National Program for Encouraging the Employment of Older Workers is contained in Law 30/2005, of 29 December 2005. This Law aims to encourage the employment of older employees by introducing rebates on employer social security contributions for the recruitment of employees over the age of 60 years and by removing employer social security contribution obligations in circumstances where employers maintain the employment of or recruit employees over the age of 65 years.

There are also rules concerning the compulsory employment of disabled employees (13/1982 Act and 27/2000 Royal Decree). Privately owned companies which have over 50 permanent employees are required to hire a number of disabled workers equal to at least 2% of the number of permanent employees on the payroll. In exceptional cases, companies may be wholly or partially exempt from this obligation. For State owned companies the obligation was recently increased by Royal Decree 2271/2004, of 3 December 2004, to 5% of a company’s annual vacancies (including temporary positions).

We also expect discrimination claims when the employees are dismissed because, as explained before, since compensation for breaches by the employer or dismissal is capped by law, the way to obtain higher compensation is to add a discrimination claim to the claim for dismissal or some other claim.

Therefore, this type of claim is often used simply as a way of forcing the company to negotiate. However, since the compensation is not capped, large sums of money can be claimed to put pressure on the company. This means that the company has to prepare a more elaborate defence for the hearing, which requires a great investment in terms of both time and money.

Are there any specific exceptions in your laws?

The ordinary retirement age is 65 but there are different ages for different professions:

· For maritime workers there are certain coefficients which reduce the age of retirement, which vary from 0,40 to 0,10 according to the class of work which is carried out and they type of vessel concerned, which allows a reduction of the age in question of up to 10 ears at the most, with respect to the general recognised age of 65

· For coal mining workers there is a reduced coefficient of 0,5 for coal face works and drillers and 0,05% for ordinary workers of the surface

· For public servants there is mandatory retirement age of 70 years old.

Retirement ages

Law 14/2005 of 1 July on clauses in collective agreements concerning employees’ reaching the ordinary retirement age has re-opened the door to the negotiation of compulsory retirement in the collective agreement in Spain.

From 2 July 2005, collective agreements may agree on compulsory retirement for employees, providing that:

i. The measure is connected to coherent objectives with the employment policy of the collective agreement (such as improvement of stability in employment, conversion of temporary contracts into indefinite contracts, recruitment of new employees and any other objective aimed at enhancing quality of employment).

ii. The employee has covered the minimum contribution period and meets the other requirements specified by Social Security legislation for entitlement to a contributory retirement pension.

According to this law, compulsory retirement clauses will not be discriminatory because they are to be “objectively and reasonably justified” as they will be linked to “legitimate employment policy, labour market and vocational training objectives”, as stated in Article 6 of Directive 2000/78.

Interesting cases

Until recently the case law has supported a certain difference in treatment of old and young employees. In fact there is a judgment of the Constitutional Court, which in essence says that a certain degree of discrimination may occur, because the Constitution does not provide for equal treatment in the absolute sense and the employer may put forward arguments to support differences in treatment, provided that they are reasonable and objective. An example of this is the judgment of the Basque Country Employment Court dated 10 September 2002, which analyses the case of an employee who was challenging the decision of his employer not to take on staff over a certain age. The Court took the view that the measure was not discriminatory because it was not unreasonable, given that the employer was trying to rejuvenate the company, although one of the Judges did dissent, saying that the measure was null and void because it was discriminatory.

However, there are also precedent judgments accepting claims from employees based on age discrimination, albeit few and far between, not because the claims have not been successful but because they have not been brought in the first case.

One example is the judgment of the Employment Chamber of the Madrid High Court of Justice of 3 December 2003, which ruled that a dismissal was null and void because the company recognised that it was unlawful and it was shown that there had been numerous dismissals of employees of a certain age. Another is the judgment of the Employment Chamber of the Aragón High Court of Justice of 28 February 2005, which also ruled that a dismissal was null and void where the employee was a minor, because no evidence had been produced to show that minors should not do the job in question.