SPAIN Law and Practice Contributed by: José Antonio Segovia, A&O Shearman
7.5 Protected Categories of Employee Certain groups of employees are especially protected from dismissal. These include: • pregnant employees and employees during the 12 months that follow them giving birth; • employees on reduced hours of work to take care of a child or a disabled person; • employees in maternity/paternity during the period of suspension of their employment contract; • employees who are victims of domestic violence; • employees’ representatives; • data protection delegates; and • employees who have filed and won a claim against the company. Courts are very protective towards these employees, and dismissals affecting them are presumed to be contrary to their fundamental rights unless otherwise evidenced by the company. If the employer is unable to provide objective criteria and adduce strong and sound evidence to justify termination, the dismissal will be rendered null and void. This will entail an obli - gation on the part of the employer to reinstate the employee so affected and pay to them a procedural salary (ie, the salary accrued from the date of termina - tion up to the reinstatement date).
an employee legal representative or a union delegate, an adversarial proceeding shall be opened in which the affected employee and works council shall be heard. Should the employee be affiliated to a union, and if the employer is aware of that, it must give a prior hearing to the union delegates. Disciplinary dismissal is the most serious sanction that a company may impose on an employee and is subject to a statute of limitation of 60 days, as from the date on which the breaches became known to the employer or six months from the date on which the breaches took place. 7.4 Termination Agreements An employment relationship can be terminated by mutual agreement between the employer and the employee. The advantage of this route is that the parties are free to agree the terms and conditions of the termination unconstrained by statutory compen - sation. The drawback is that the employee shall not be entitled to collect unemployment benefits and the tax treatment of any compensation agreed will be impacted. Apart from the above, when a company follows the dismissal route and the employee challenges the ter - mination before the conciliation authorities or a labour court, the parties will have the chance to settle the case and avoid further disputes. For such purposes, the employee must file a conciliation claim within a maximum period of 20 working days from the effective date of termination. Thereafter, the parties shall attend a hearing in which they will have the opportunity to settle the dismissal. Upon completion of the conciliation process, the offi - cials will issue the relevant minutes of the hearing. Should the conciliation process end without an agree - ment, the employer will have to submit the relevant judicial claim before the labour courts if it wants to pursue its claim, and the court will have to admit the claim and schedule a judicial conciliation hearing and trial. Nevertheless, the parties will have an opportunity to reach an agreement before judgment is issued.
8. Disputes 8.1 Wrongful Dismissal See 7.2 Notice Periods . 8.2 Anti-Discrimination
It is unlawful to directly or indirectly discriminate against employees or potential employees on the grounds of sex, marital status, age, race, ethnic or racial origin, social status, religious or political beliefs, sexual orientation or identity, trade union membership, language or disability, or against employees who have familial relationships with the employer. Filing Claims Employees who believe that they have been dis - criminated against may file a claim against such dis - criminatory treatment and be awarded compensatory damages. The burden of proof lies with the employer,
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