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Spain overturns labour reform that saw workers sacked for taking too much sick leave

Spain's left-wing government on Tuesday banned companies from firing workers who repeatedly take sick leave, in its first reform of a contested 2012 overhaul of the country's labour laws.

Spain overturns labour reform that saw workers sacked for taking too much sick leave
Photo by twinsfisch on Unsplash

“We are sending a message to our society that from now on, nobody will be fired who has a legitimate reason for taking sick leave,” Labour Minister Yolanda Diaz told a news conference after a weekly cabinet meeting.

“With this repeal we are correcting an anomaly that differentiated our country from those around us,” she added.

An article of the 2012 reform of Spain's labour laws carried out by the previous conservative government made it easier to dismiss a worker on the grounds of repeated absences for ill health, even when an employee produced medical certificates justifying them.   

Previously it had been possible to fire a worker who missed a week or more of work over a two-month period if the average number of sick days taken in the previous 12 months reached five percent of the total.

The 2012 reform brought that bar down to 2.5 percent.   

Introduced at the height of Spain's economic downturn in a bid to bring down sky-high unemployment, the labour law reform made it easier and less expensive to lay off workers, and also limited the power of labour unions to negotiate contracts over entire industrial sectors.   

The International Monetary Fund said in a recent report that the reform had “improved the performance of employment” in Spain but critics blame it for a decrease in job security. Spain is more reliant on temporary contracts than any other European Union nation, according to Eurostat figures.   

Prime Minister Pedro Sanchez's Socialist Party and his leftist coalition partner Podemos made overturning parts of the 2012 legislation a centrepiece of their electoral campaigns.

Spain's unemployment rate plunged from a record high of 27.2 percent in the first quarter of 2013 to 13.8 percent in the fourth quarter of last year, still the second-highest jobless rate in the EU after Greece.

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Do I have to take most of my annual leave in August in Spain?

Many Spanish companies still expect their workers to take their holidays at specific times of the year, primarily in August, right in the height of summer when many hotels are fully booked. So what are your rights, are you obliged to take your vacation in one particular month?

Do I have to take most of my annual leave in August in Spain?

While it’s your right as an employee to be able to take holiday days, do you have to take them when your company wants you to take them, or are you able to choose and have more flexibility?

Despite August being one of the hottest months in Spain and the one month of the year when many official companies and offices shut up shop, not everyone necessarily wants to take their break at the same time as everyone else.

Taking your holidays in August means less availability in hotels, overcrowding and more expensive transport and accommodation. If you don’t have children who are off from school during the summer months, then you may wish to take your vacation days at another time of the year, when it’s less busy and cheaper.

To answer the question it’s important to know the details about what the law says about how paid time off is taken, requested, imposed, or granted.

What laws or regulations dictate the rules about paid holiday time?

There are three different sets of rules and regulations, which are responsible for regulating the laws on vacation time in Spain. 

Firstly, you need to look at the Spanish Workers’ Statute, which includes rights, duties and obligations applicable to all salaried workers in Spain.

Secondly, you need to be aware of the collective sector and/or company agreements, which may dictate the rules for a particular industry for example.

Thirdly, you need to look at the contract, which you signed with your employer when you started working for them. This sets out your individual circumstances and the rules you must abide by.   

Workers Statute

As a general rule, all employees are subject to the Workers’ Statute. Holidays are part of this and are the subject of article 38. These conditions can never be contradicted by individual companies and are set as a guaranteed minimum. 

The minimum number of holidays in Spain is 30 calendar days per year. This equals two and a half days per month worked, in the case of temporary contracts. The statute states that vacations must be taken between January 1st and December 31st in separate periods, but one of them must be for at least two weeks. They are always paid and cannot be exchanged for financial compensation.

The period when you can take them is set by a common agreement between the employer and the worker, in accordance with what is established in the collective agreements on annual vacation planning. If there is disagreement, the social jurisdiction is resorted to.

At a minimum, the company must offer vacation days at least two months before the beginning of the holiday period, so that the employee has time to organise and book.   

When the planned time to take vacations coincides with a temporary disability, pregnancy, or childbirth, you have the right to enjoy the vacations at another time, even after the calendar year is over.

Collective agreements on vacations  

Your sector’s collective agreements may also help to answer this question. These aim to improve upon the basic and general rights that are included in the Workers’ Statute. They seek to adapt the rules to each type of industry or company. They could, for example, set out extra vacation days, which are greater than the standard 30 calendar days. 

You will need to find out what your specific sector or company’s collective agreement is. There is a possibility that your sector or company has mandatory summer vacations for the month of August and in that case, you can choose vacation dates, but only within this month.

Your work contract 

Lastly, you will need to consult your individual contract which you signed with the company when you were hired.  As well as the minimum conditions set out in the Workers’ Statute, your contract sets out your particular agreement with your employer in terms of holiday duration, the work calendar and other details.

Therefore, you should state in your contract whether you have to take your holidays during August, or if you’re free to take them at other times of the year.

If after consulting these three sets of regulations and there are still in doubt or in disagreement with your company about vacations, such as having to take them during the month of August, you should consult a lawyer specialising in labor law. They should be able to give you an answer specific to your situation.  

Can I appeal or disagree and what are the consequences? 

To appeal or express disagreement with what is proposed by the company, there is a period of 20 business days from when the vacation schedule is sent out, after which time you don’t have the right to show that you disagree.  

Companies can proceed to disciplinary dismissals due to abandonment of the job if you decide to take vacations that have not been granted or agreed upon with your employer. To avoid this type of problem, always make sure you have a record in writing of your request for vacation time and subsequent approval by the company.

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