SPAIN: An Introduction to Employment: Highly Regarded

Five Keys to Understanding the Current Situation of Spanish Labour Law and Challenges in 2024

Compared to not so long ago, Spanish labour law is now an essential legal practice for companies, investors, labour relations departments and, of course, firms and legal offices.

Disregarding more or less remote antecedents, it could be said that the current situation in this increasingly essential area of legal knowledge can be traced back to 2020. And this is due to three essential factors:

• the pandemic (mainly owing to the new forms of work that came with it – working from home or remote work);

• the birth and promotion of the new anti-discrimination law; and

• the coming to power of a new government with a clear ideological identity as far as working people are concerned.

Just three years later, the evolution of labour law in Spain has no parallel or brake, which is leading to the emergence of major challenges to be faced by legal practitioners. Overcoming them will depend to a large extent on the proper functioning of the business or company for which the advice is provided.

Now, in order to understand more precisely the important situation that labour law is currently going through, it is essential to take into account the following five keys that are essential to this change.

The incessant generation of regulations and case law and the increasing incidence of supranational law

Undoubtedly, one of the greatest challenges faced by legal practitioners in the labour field is the increasingly excessive generation of regulations and jurisprudence of very diverse content and scope. From this point of view, it is impossible for HR, labour relations or legal teams to keep up to date with the many different regulatory provisions (national and international; legal or regulatory) that affect the labour field on a daily basis. In this sense, it is essential to have the best and most specialised professional advice possible in the field, with the ability to offer constant and absolutely reliable updates on a daily basis ‒ especially considering that the labour and employment legal advice is increasingly cross-cutting (data protection and privacy, bankruptcy, equality and diversity, sustainability, structural modifications or labour aspects of M&A, compliance, etc).

A new model of labour relations in the 21st century (from the service industry to the technological and digitalisation era)

The context in which labour relations develop today is totally different from the scenarios that existed in 1980 (the year in which the first Workers’ Statute was approved in Spain). Precisely for this reason, it is also necessary to carry out a thorough review of the very different labour law institutions, starting with even such classic questions as the very definition of the concept of “worker”. In fact, this task has already begun within the framework of social dialogue, with the various social agents (trade unions, employers and the government) currently working on the so-called Statute of the 21st Century. Hence, it is no longer enough to simply be aware of things; rather, in order to be able to plan their respective labour relations strategies more adequately, companies must be permanently alert to the possible regulatory changes that are about to take place.

The new anti-discrimination law and the consolidation of the discipline of equality and diversity

As an illustrative fact in this regard, it is sufficient to point out that in the space of two-and-a-half years more than six different regulations have been published in Spain, with a direct impact on equality and diversity. Therefore, it is both essential and obligatory for companies to have a team specialised in this area. This team must be capable of knowing each and every one of the new obligations that are constantly being introduced in the different regulations, as well as having the ability to design policies that not only allow compliance with the law but also the promotion of equality and diversity in the workplace as a tool for employer branding and/or attracting and retaining talent.

The new model of participation of workers’ representatives and trade unions in companies
As far as this point is concerned, it should be borne in mind that in Spain the model of representation has always been characterised by two essential features:

• dual channel of representation (workers’ representatives in the company and trade unions); and

• a model of participation (consultation), not co-determination.

However, the proliferation of regulations in recent years has been accompanied by the obligation to negotiate (not to consult or inform) and sometimes to agree/agree (not even to negotiate) on a wide range of matters, prioritising dialogue with the unions and not only with the company representatives. Consequently, it could be said that Spain is witnessing a change of model in the system of worker/union participation in the company and in the structure of collective bargaining.

The cross-cutting nature of labour law with other matters, which requires a global strategic vision in advising companies and designing HR policies

As has been pointed out previously, employment law advice is becoming more and more cross-cutting. By way of example, it is sufficient to cite matters as diverse as the recent whistle-blower law (a law that has had a major impact on a subject such as harassment protocols), animal protection, and sustainability. All of them have direct or indirect effects in the field of labour relations.

What has been indicated so far leads inexorably to a change in the type of advice and management of labour relations in Spain. Whereas in the past the legal sector played a reactive role (assuming the legal defence for conflicts after the fact or in limited and specific matters such as dismissals or hiring), the labour lawyer of the present and future must be able to offer strategic advice on the basis of the new labour relations policies and codes. In short, the labour lawyer of the 21st century in Spain must be able to anticipate problems, be permanently up to date and possess an excellent technical mastery capable of overcoming artificial AI in order to design strategies and policies aligned with the business objectives of the companies they advise.