Every country has laws in place to ensure employees don’t come to harm at work. Employee protection in Spain is covered by various pieces of legislation, including the Spanish Constitution (Constitución Española) and the Workers’ Statute (Estatuto de los Trabajadores). These provide employees with important rights, like the right not to be discriminated against or harassed in the workplace.
As an employer in Spain, you’ll need to understand the key employee protection legislation in Spain and what it means for you and your employees. In this guide, we’ll take you through some of the most important things you need to know, including the rules about whistleblowing, the categories of employees who are specially protected in Spain, and what the law says about pay equity and equal treatment for men and women.
Whistleblowers are people who come forward about something illegal or wrong that they have witnessed at work. They play an important role in calling out wrongdoing within their organisations so that the company’s leadership or an external body can step in to stop it. For this reason, many countries have put in place specific protections for whistleblowers, which ban employers from dismissing or otherwise discriminating against them.
Spain’s whistleblowing law is based on the EU Whistleblowing Directive. It came into force in Spain in February 2023. The law requires companies with 50 or more employees to establish internal reporting systems that allow employees to come forward with their concerns. They also have to define a maximum time limit for responding to claims, which can’t be longer than three months. Companies in some sensitive sectors, including finance, transport and environmental security, and trade unions have to establish reporting procedures regardless of their size.
As part of Spain’s whistleblowing law, whistleblowers are protected from reprisals. That means employers are not allowed to:
In Spain, whistleblowing law only applies to certain disclosures, which are based on the EU Whistleblowing Directive. Specifically, whistleblowers are only protected if their disclosure concerns either:
Whistleblowing laws are supposed to encourage disclosures that are in the public interest. That means that employees can’t use whistleblowing processes to report interpersonal conflicts.
Whistleblowing laws in Spain protect employees, volunteers, trainees, and candidates in the hiring phase. They also extend to people assisting the whistleblower and personal contacts of the whistleblower.
If an employer does discriminate against a whistleblower in Spain, they can be fined. The amount of the fine depends on the seriousness of the offence and whether the employer is an individual or an entity. Penalties for individuals range from EUR 1,001 for minor offences to EUR 300,000 for very serious offences, and penalties for entities range from EUR 100,000 to EUR 1,000,000.
In Spain, there are strict rules about how employers handle their employees’ personal data (as well as the data of their customers, clients and account holders). Generally speaking, employers in Spain can only process personal data if they have a good reason for doing so.
Spain’s data privacy laws are based on the General Data Protection Regulation (GDPR). This is an EU-wide law that limits the way individuals and businesses can handle personal data. It stipulated that employers have to notify employees of the data they store on them and how it is processed. Under Spain’s interpretation of the GDPR, employees also have a specific right to privacy when using digital devices, the right to disconnect from digital tools, and the right to privacy against video surveillance in the workplace.
According to the GDPR, ‘personal data’ is any data that relates to an identifiable person, including their:
Data gathered through digital devices, such as cookie IDs and location data, also counts as personal data under the GDPR (and therefore under Spain’s data privacy laws).
In Spain, there are special rules about storing and processing personal data that is considered ‘sensitive’. This includes data that reveals a person’s racial or ethnic origin, political opinions, or religious beliefs. It also includes health-related data, data related to a person’s sex life or sexual orientation, and data related to a person’s trade union membership.
Employers in Spain have the right to monitor their employees, but there are certain restrictions on what they can do. First, employers must use the ‘least aggressive’ means of monitoring employees. They must also be able to show that monitoring employees is necessary, justified, proportionate, and balanced. Employers have to inform employees of the monitoring systems they have in place.
Employers sometimes want to hire workers for a short period of time, for example when they have an increased workload that their permanent team is unable to handle. In this situation, it’s often easier to hire workers through a temporary work agency, rather than dealing with the administration of sourcing and engaging workers yourself.
However, temporary agency workers have historically been treated unfairly compared to their permanent counterparts. Because of this, many countries around the world have put in place rules that define how temporary workers should be treated, often guaranteeing them equal treatment after a certain period.
In Spain, agency workers are employees of the temporary work agency they work for, and the agency is responsible for paying their wages and withholding and paying their taxes and social security contributions. They are then hired out to a client company for a set period. The temporary work agency and the user client have to have a written contract in place.
Businesses in Spain are not allowed to use temporary agency workers to replace workers who are on strike, or for dangerous work. Clauses preventing the client company from directly hiring an employee after the end of a temporary contract are null and void unless there is a specific agreement between the temporary work agency and the client company.
The Royal Decree Law 32/2021 came into effect in Spain on 30 March 2022. This law gives temporary agency workers the right to receive the same remuneration as permanent workers performing the same work for the same company. Special rights defined by collective bargaining agreements that apply to the workplace must also be granted to temporary agency workers.
The Spanish government considers protection from discrimination to be a fundamental human right. Employees who have been subject to discrimination or harassment can make a claim before the labour court, and their employer could be held responsible.
The right to be protected from discrimination is set out in the Spanish Constitution (Constitución Española), which states that all people are ‘equal before the law’ and may not be discriminated against on the basis of their ‘birth, race, sex, religion, opinion, or any other personal or social condition or circumstance’.
The Penal Code (Código Penal) and the Workers’ Statute (Estatuto de los Trabajadores) also provide additional protections addressing direct and indirect discrimination, harassment, and victimisation in the workplace.
Today, the following characteristics are protected in Spain:
Anti-discrimination laws in Spain protect employees from the following types of discrimination:
Employers in Spain have a responsibility to protect their employees from harassment and could be held liable for discrimination or harassment committed by another employee. When an employee believes that they have been subject to discrimination or harassment, they can make a claim to the Arbitration Office (Instituto de Mediación, Arbitraje y Conciliación) and then the Labor Court (Magistratura de Trabajo).
In certain very specific circumstances, employers can directly discriminate on the basis of sex or age. They can only do this if it represents a ‘genuine occupational qualification’. For example, if a job specifically required someone to be a man or a woman, they could choose to discriminate against people of the other gender.
Equal pay for men and women doing the same work is a fundamental right under both EU and Spanish law. Spain’s equal pay laws will be impacted by a new EU directive, which will be transposed into national law in all member states by June 2026.
The laws governing equal pay for men and women in Spain include the Organic Act 3/2007 and Royal Decree 902/2020. These laws state that employers are required to pay employees the same amount if the work they provide is of equal value, regardless of their sex.
The concept of ‘work of equal value’ is complex, as it doesn’t only apply to employees in the same role. Under Spain’s equal pay laws, work may be considered to be of equal value if it is substantially similar in terms of the functions or tasks it involves, the educational or training conditions required, and the working conditions of the role.
Employers in Spain are required to keep a record of the average salary and non-wage benefits granted to their employees, broken down by sex and category according to the rules around work of equal value. Employees can access this record through workers’ representatives.
Since 2020, companies in Spain with more than 50 employees have also been required to create and register an ‘equality plan’. This is a document that specifies the measures the company is taking to ensure equal treatment for men and women. Equality plans must be publicly registered and can have a maximum duration of four years.
In 2023, the EU Parliament and Council approved a new directive on pay transparency. EU member states now have until June 2026 to transpose the rules in the directive into national law. The idea behind the directive is to force companies to be more transparent about their pay practices, in order to reduce the gender pay gap.
As we’ve seen, there are already laws that aim to provide equal pay for women in Spain. However, the EU directive will introduce several key changes:
Understanding what you can and can’t do as an employer is one of the biggest challenges of hiring in Spain. Get it wrong, and you could face legal action and damage to your reputation.
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