Employment - Legislative and case law developments

1. New obligations for companies receiving aid under Royal Decree-Law 7/2026

Companies that have received direct aid under Royal Decree-Law 7/2026 cannot, until 30 June 2026, lay off workers or shut down operations on the grounds of force majeure or business difficulties (economic, technical, organisational or production-related) that are linked to the energy crisis caused by the war in Iran. Also, companies must start negotiating and preparing sustainable commuting (mobility) plans twelve months earlier than originally required. If they fail to comply, they will have to repay any aid received under Royal Decree-Law 7/2026 .

2. Null post-contractual non-compete clauses do not justify clawback of salary increases

If compensation for a post-contractual non-compete clause is structured as a salary increase (above that set out in the applicable collective bargaining agreement), it is treated as ordinary salary rather than compensation for the non-compete clause. Therefore, it is classed as remuneration for work already carried out. If the non-compete clause is later declared null, the employer cannot recover the payment (clawback).

3. Invalid bonus plan clauses: unlawful deductions and discretionary adjustments

A clause in a bonus plan cannot give an employer the right to withhold an employee’s bonus just because they have been subject to a serious or very serious disciplinary sanction during the accrual period. Such a clause would be null because it constitutes an unlawful wage deduction under article 58.3 of the Workers’ Statute and amounts to a hidden penalty not supported by the applicable collective bargaining agreement. Also, a clause allowing a manager to change the incentive at their discretion, without clear and objective criteria, is null, as it is contrary article 1256 of the Civil Code and the principle that pay must be transparent and predictable.

4. Bonus entitlement and sick leave: what is allowed

The Supreme Court has held that it is discriminatory for a collective bargaining agreement to exclude periods of temporary sick leave (due to non-work-related illness) when calculating the minimum service required to qualify for a bonus. However, it is not discriminatory for the agreement to reduce the bonus proportionally based on the time actually worked. This means that employers can take into account absences due to sick leave when calculating the final bonus amount.

5. Reversion of a tourism lease qualifies as a transfer of undertaking

When a fully equipped tourism business reverts to its owner at the end of a lease, this constitutes a transfer of undertaking under article 44 of the Workers’ Statute. The key point is that what is returned is not just a property, but a going concern. This applies even if the owner decides not to continue the tourism activity at the end of the lease.

6. Different remote working conditions do not automatically amount to discrimination

The Supreme Court has held that treating employees differently in terms of working conditions – when they are not covered by the same collective bargaining agreement – is not discriminatory under article 14 of the Spanish Constitution. For it to be discriminatory, the difference must be arbitrary or unjustified, or based on an unlawful reason.

7. Family care leave does not have to start on the date of the triggering event

The Supreme Court has held that an employer cannot require family care leave to start on the exact day the triggering event occurs as this would be contrary to article 37.3(b) of the Workers’ Statute. This is unlawful because it undermines the very purpose of the leave. Employees must be able to choose when to take the leave, so they can organise care in a way that best suits their personal circumstances.

8. CBA clauses providing for automatic termination due to legislative changes are invalid

The Supreme Court has ruled that a clause in a sectoral collective bargaining agreement providing that the agreement will end automatically when certain laws change is null. The Court considers this to be incompatible with the legal nature of collective bargaining agreements and with the Workers’ Statute, which already provides specific ways to adapt these agreements to new circumstances.

9. Employee representatives’ involvement in digital device policies: prior consultation sufficient

The National Court has dismissed a claim made by various trade unions against a company’s digital device use policy. It holds that article 87.3 of the Data Protection Law does not require negotiations with employee representatives or their agreement. The company only needs to request a prior report from employee representatives before implementing the policy.

Upcoming legislative developments

1. Preliminary draft bill amending key occupational health and labour laws published

The proposal aims to modernise Law 31/1995 of 8 November on occupational health and safety, which is over 30 years old. Key measures include:

• Limiting when employers can personally handle their health and safety measures – this will only be allowed in companies with up to ten employees and a single workplace;
• Creating “territorial prevention officers” to support small companies that do not have employee representatives; and
• Removing early payment discounts for fines when an employer’s breach directly causes a workplace accident or illness.