Our Employment Lawyers, specialised in Employment Law, will be able to offer you our professional services in the processing and defence against employment sanctions from both the employer's and the employee's point of view.
If you wish, in addition to being attended in our Law Firm in Madrid, we offer you the possibility of being attended by our Labour Lawyers in our offices in Pozuelo de Alarcón and Majadahonda.
The claim period is 20 days and it is time-barred.
Grounds for penalties
They shall be deemed to be breaches of contract:
- Repeated and unjustified lack of attendance or punctuality at work.
- Indiscipline or disobedience at work.
- Verbal or physical offences against the employer or persons working in the company or family members living with them.
- Breach of contractual good faith, as well as breach of trust in the performance of work.
- Continuous and voluntary decrease in normal or agreed work performance.
- Habitual drunkenness or drug addiction if they have a negative impact on work.
- Harassment on grounds of racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual or gender-based harassment of the employer or people working in the company.
The employer has the right, within the employment relationship with his employees, to order them to perform certain tasks according to their contract. This is clarified in Article 20.1 of the Workers' Statute. In the event that one or more of them refuse to perform them, he has the right to impose labour sanctions. This is an aspect on which we would like to focus here.
In what ways can an employer sanction his employees?
Once again, it is necessary to refer to the Workers' Statute to find an answer. Specifically, it indicates that there are three alternatives:
- Verbal or written reprimand. This is the mildest formula and the one associated with the least serious conduct.
- Suspension of the employment contract. This means that, for a certain period of time, the employee stops receiving his or her salary and stops working. It is typified in article 45 h) of the Workers' Statute.
- Disciplinary dismissal. This is the most serious case as it entails the definitive suspension of the employment relationship. It is regulated in article 54 of the Workers' Statute.
It follows from the above that there are three types of misconduct that can lead to the imposition of an employment sanction: minor, serious and very serious. However, the Workers' Statute does not specify exactly what they are. It simply limits itself, in Article 54, to stating what they are in general terms:
- a) Repeated and unjustified failure to be punctual and/or attend.
- b) Indiscipline or disobedience to superiors.
- c) Verbal and/or physical offences against the employer or other workers.
- d) Breach of contractual good faith.
- e) Voluntary reduction in work performance.
- f) Habitual drunkenness and drug addiction.
- g) Sexual harassment or harassment based on race, ethnicity, religion, age, disability, sexual orientation, conviction or any other aspect.
From all of them, it is clear that Article 54(d) is a kind of disaster box into which all conduct that an employer considers punishable can fit.
So, who determines the seriousness of the conduct that is punishable?
Since the Workers' Statute does not do so, it is necessary to resort to the collective agreements of each sector. In fact, these legal texts have the power to elaborate on the points specified above and to add new ones.
Collective agreements are also the ones that set the limits of sanctions. For example, an employer may not impose penalties other than those specified in the collective agreements. If an offence is minor, it cannot be classified as serious. However, the accumulation of minor offences can lead to a more serious offence. This is the case, for example, with unjustified absences.
How are sanctions imposed?
This is also covered by collective agreements. The Workers' Statute simply states that serious and very serious misconduct must be notified to the employee in writing, clearly indicating the facts that justify it and the date on which it took place. Minor misconduct can simply be notified verbally.
If the employee to be sanctioned for a very serious misconduct is a legal representative of the employees, it is necessary to open a contradictory sanctioning file beforehand.
Employees' representatives must be notified when an employee is accused of very serious misconduct. The works council and the personnel delegate must also be informed.
Is there a statute of limitations on misconduct subject to labour sanctions?
Yes, as stated in Article 60 of the Workers' Statute, which clearly indicates that the employer must initiate the sanctioning process within a certain period of time from the time he/she becomes aware of the misconduct. These are:
- Very serious misconduct. 60 calendar days.
- Serious misconduct. 20 calendar days.
- Minor offences. 10 calendar days.
The limitation period starts when the employer becomes aware of the event causing the offence, not when the offence was committed. In this sense, in order for the punishable action to be time-barred, 6 months must have elapsed, regardless of the type of action. This is so unless there has been malicious concealment of the facts. In this case, the 6-month limitation period will not be effective and the employer can impose the penalty without any inconvenience.
But what can the sanctioned worker do?
Complain. According to the Workers' Statute and the collective agreements of the different sectors, all workers have the right to challenge the sanction to which they have been subjected. To do so, they are obliged to file a complaint within 20 working days from the date on which they received notification of the sanction.
Minor sanctions do not affect the salary or the job itself. However, both serious and very serious sanctions do. That is why they should always be challenged in court. Bear in mind that they will not become effective until a judge ratifies them. And employers often find it difficult to gather sufficient evidence to convince the magistrate who, if in doubt, will always rule in favour of the employee.
In short, if you have recently been subject to an employment sanction, our advice is to get in the hands of an experienced employment lawyer as soon as possible to draft the challenge and the claim. It could be the difference between keeping your job or not.
Our Employment Lawyers, specialised in Employment Law, can offer you our professional services in the processing and defence against employment sanctions from both the employer's and the employee's point of view.
If you wish, in addition to being attended in our Law Firm in Madrid, we offer you the possibility of being attended in our offices in Pozuelo de Alarcón and Majadahonda.
The claim period is 20 days and it is time-barred.