In the current economic climate the number of employers who are no longer paying their employees on time or at all is growing. Should this happen to you, what can you do about it?
The Spanish Workers Statute (Royal Decree 1/1995 of the 24th March 1995) states that an employee is entitled to be paid on time. Where you are not paid on time you should issue proceedings to claim your wages. To do this your employer must owe you a minimum of two months wages.
Additionally, you can request the termination of your contract of employment if you wish. In this case you would need to issue two claims, one to claim the money owed and the other to terminate your contract. However you cannot leave your job until the Court has issued its Judgement, otherwise your employer could claim that you have left your job voluntarily.
If you find that you are a few months in arrears then your employer is obviously having serious financial difficulties and the best thing to do is to take proceedings to claim your wages and terminate your contract.
Your wages or your total remuneration, in cash and incentives, is payment to you for services rendered by you to your employer. Article 29.1 of the Workers’ Statute states that the period for regular wage payments should never be more than one month. You can also be paid daily, weekly or fortnightly. The place and method of payment is can be specified either in your own personal written contract, or a separate document, or possibly even verbally.
If your employer has not paid any wages for several months or it declares itself insolvent the employee must instigate two procedures in the Servicio de Mediación, Arbitraje y Conciliación (SMAC) of the autonomous region where you are working. You must exercise your right to make your claim within one year of the arrears arising and you can claim up to 12 months arrears of wages and it will be for you to prove the arrears.
If your employer is not treating his entire staff equally this could be classed as bullying or “mobbing” as it is known in Spain, or in England technically as “constructive dismissal”. The aim is to drive you into a position where you are forced to resign apparently voluntarily and not be eligible for compensation or unemployment benefit.
In this situation you would have to present a “demanda” for the wages you claim and add 10% interest, as stated in Article 29.3 of the Worker’s Statutes (Royal Decree 1/1995 of the 24th March 1995).
You should also present a “denuncia” (press a formal charge) against your employer in the Inspección de Trabajo (Labour Inspector’s Office) for the humiliation and discrimination you have suffered supported by a formal claim that you be treated with dignity and without discrimination, and for financial compensation.
If you believe you are being treated in this way you should first talk to your employer perhaps with the help of a colleague, or, if appropriate, your trade union or other workers’ representative. You should also give your employer a written request for their written explanation of your treatment, with your own description of the facts.
Your employer’s written reply will either satisfy your complaints or will provide you with evidence to support your “demanda”.
Article 17.1 or the Workers Statutes makes null and void any clauses contained in a “collective agreement” (which regulates the working conditions between the employer and all the workers in one particular industry), or in individual agreements, and unilateral decisions made by the employer that are discriminatory, either directly or indirectly unfavourable to the worker.
Discrimination is unlawful in both the offer of employment and the management of staff in many areas. These include pay, working hours, and other working conditions. The prohibition on discrimination also extends to the personal attributes of staff such as their age (below the normal retiring age), disability, gender, racial or ethnic origin, civil status (for example paying single members of staff less than married members of staff for the same job), social class, religion or beliefs, politics, sexual orientation, membership of a trade union, family ties to other workers in the company, and preference between speakers of the official languages within the Spanish State.
The Workers Statute also invalidates any instruction from an employer which attempts to force co-workers to discriminate against a colleague as a consequence of a claim made by that member of staff to enforce equal treatment by administrative or legal proceedings.
If you believe that you have suffered discrimination or bullying at work you may feel confused and isolated. These situations can take a mental toll on the victim and even result in clinical depression. However, it is very difficult to claim compensation for mental anguish even with the support of a medical specialist. You could be playing into your employer’s hands if your own evidence suggests that you did not have the mental or emotional stamina to do your job and your employer was justified in the way they treated you.