Recent developments in the framework of Spanish employment law

The Spanish government has recently issued several pieces of legislation in the employment arena, which involve important and new duties for companies established in Spain.

Royal Decree-law 6/2019, of 1 March 2019, concerning urgent measures aimed at granting equal treatment and opportunities amongst women and men in employment matters (RDL 6/2019)

Gender equality plans

Until now, only companies with 250 or more employees were obliged to draw up equality plans, which are defined as an ordered set of measures to ensure equal treatment and opportunities and to eliminate any discrimination on the grounds of gender in companies.

The RDL 6/2019 extends the obligation to draw up equality plans to companies with 50 or more employees, and introduces additional details on the negotiation and content of these plans.

Before starting to draw up the equality plan, a diagnosis must be made, in negotiation with the employees’ legal representatives.  This negotiated diagnosis shall include, at least, an analysis of equality regarding a series of aspects of the company, including hiring processes, training and formative processes, working conditions, under-representation of women in the company, remuneration and sexual harassment prevention.

RDL 6/2019 also sets up a new "Registry of Company Equality Plans", where companies will have to register their equality plans.

The deadline for approving and registering equality plans varies according to the size of the company:

• For companies with a workforce between 150 and 250 employees, equality plans must be put in place and registered by 7 March 2020;
• For companies with a workforce between 100 and 150 employees, by 7 March 2021; and
• For companies with a workforce between 50 and 100 employees, by 7 March, 2022. 

Failure to draw up or fail to implement the equality plan will constitute a very serious infringement, which may be punished with a fine between € 6,251 and € 187,515. 

Salary registry

RDL 6/2019 also establishes the obligation for all companies to keep a registry of the average wages, salary supplements and extraordinary supplements, distributed by gender and distributed by occupational groups or jobs. 

This registry shall be accessible to the employees’ legal representatives and to the negotiating committee of the equality plan.

This obligation applies to all companies (regardless of size) and is already in force from 8 March 2019. 

Royal Decree-law 8/2019, of 8 March 2019, regarding urgent social protection measures, as well as focused on fighting against precarious working time conditions (RDL 8/2019)

Working time registration

The new section (9) of Article 34 of the Workers' Statute introduces the obligation for all companies (establishing no exceptions) to ensure the daily records of the working day, including the specific beginning and ending times of each employee's working day.

In terms of how to set up such a registration system, the legislation provides that it should be done by collective bargaining negotiation or an agreement with the employees’ representatives.  In the absence of these, the employer could decide on the system, but employees’ representatives should be consulted before the implementation of the time registration system.

Companies will have to maintain their working time records for four years and make them available to employees, their legal representatives, and the Labor and Social Security Inspectorate. 

The law provides that these obligation shall enter into force within 2 months – officials have informally confirmed that the 2-month period is to start the negotiation (although they suggest doing so as soon as possible), rather than to have the system up and running.

In addition, RDL 8/2019 provides for the classification as a serious infringement of the failure to comply with the rules on the registration of working time. 

Many questions arise about the application of these measures, e.g. in relation to teleworking or flexible working hours.  All the more so since the obligation to keep a working time register adds to another recent innovation in terms of working time, whose definition and limits are not always clear: the right to disconnection, which was recognized by the Organic Law on the Protection of Personal Data, which came into force on 7 December 2018.

New Workers Statute

RDL 8/2019 also states that it is time to change the basic Spanish employment law, the Workers Statute, and announces that a committee will be set out to start working on this.  Given that new general elections shall take place next month, though, whether this goes ahead or not will largely depend on the result of those elections.