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Selection order rules in Spain: what employers need to know

Written by
Sagardoy Abogados largest boutique firm focusing on HR law.
Employers’ obligations when conducting a collective dismissal procedure in Spain: rules affecting selection order.

There is no mandatory selection order for dismissals under Spanish law.

Once an employer has communicated its intention to carry out a collective redundancy (for economic, technical, organisational or production reasons) to employees or their legal representatives, the collective redundancy procedure starts with written communication of the opening of the consultation period from the employer to the employees’ legal representatives.

This communication must include (among other information) the number and professional classification of the employees affected as well as the criteria for these employees to be chosen (i.e. the criteria to determine the employees affected by the collective dismissal will be provided).

Although there are no statutory criteria by which to select the employees affected by a collective redundancy, the criteria applied must be objective and non-discriminatory.

Further, please note:

Employees’ legal representatives have priority of permanence over other employees affected by the collective redundancy. This priority will also benefit employees belonging to other groups if this has been agreed by collective bargaining agreement or by agreement during the consultation period between the company and the employees’ legal representatives (i.e. employees with family responsibilities, employees over a certain age or disabled employees). In its final decision, to be taken after the consultation period finishes, the company will have to justify why any employees with priority of permanence in the company will be made redundant.

As a result of recent modifications to Spanish legislation, it must be sufficiently demonstrated that the reason supporting the redundancy dismissal of some types of employees specifically requires termination of employment for this type of employees. These include:

  • pregnant employees;
  • employees whose employment is suspended on specific grounds such as maternity leave, pregnancy risk, breastfeeding risk or illnesses caused by pregnancy, childbirth or breastfeeding;
  • employees reinstated in the company immediately following suspension of employment for one of the reasons mentioned above.