This summary of age discrimination law in Spain has been prepared by Sagardoy Abogados, the Ius Laboris member for Spain: www.sagardoy.com.

OVERVIEW

Under Spanish law, there is a general principle of equality, which forbids all forms of discrimination. According to Article 14 of the Spanish Constitution (“Constitution”), Spaniards are equal before the Law and may not be subjected to any discrimination by reason of birth, race, sex, religion, opinion or any other personal or social circumstances.

Spain also enacted law 15/2022 of July 12, 2022, on equal treatment and non-discrimination. Article 2 recognizes the right of all persons not to be discriminated against on the basis of age, among other causes of discrimination.

Under Article 4 of the Workers’ Statute, employees have the right to not be directly or indirectly discriminated against in employment by reason of sex, civil status, age, racial or ethnic origin, social status, religion or convictions, political ideas, sexual orientation, membership or non-membership of a union or language. More explicitly, Article 17 prohibits such discrimination in employment relationships by providing that collective agreements, pacts or decisions of the employer that directly or indirectly discriminate on the grounds of age are null and void. Unless provided by the law, positive or negative discrimination by the employer during employment is prohibited.

The law prohibits discrimination when it comes to any aspect of employment, such as hiring, firing, compensation, job assignments, promotions, temporary layoffs, training, fringe benefits, and any other term or condition of employment.

Discrimination can be direct or indirect.

Direct discrimination occurs when a person is treated less favourably than others in an analogous situation, due to reasons of birth, race, sex, etc. (Articles 9.2, 14, 28.1 and 35.1 of the Constitution and 4.2.c), 17, 28, 53.4, 55.5 and 68.c) Workers' Statute).

Indirect discrimination occurs when an apparently neutral provision, criteria or general rule can put a person of a particular age at a particular disadvantage with respect to other people due to his/her age or other conditions.

Spain does not specifically prohibit age based harassment. This would have to be brought as a claim of direct age discrimination. In other words, age as a prohibited cause of discrimination can be the circumstance that provokes or motivates a situation of harassment. Indeed, harassment on grounds of age may consist of a disparagement of the work performed, imputing deficiencies in its performance that are considered to be derived from the worker's age.

Victimisation/retaliation can arise if an individual is treated less favourably as a result of making allegations or complaints of direct age discrimination or acts as a witness in such proceedings.

Some examples of how the courts act in relation to age-related harassment:

- It has not been considered that the mere concurrence of the circumstance of a certain mature age (ex: 50 years old), is by itself sufficient to consider that there is harassment at work. Especially when there are several workers in the company (10 out of a total of 48) of the same age or older, and there is no record of their replacement by other younger workers, which would not be a legally prohibited business conduct. Therefore, in that case the nullity of the dismissal requested was dismissed, even though the worker suffered from anxious-depressive symptoms due to work-related problems that were not considered to constitute harassment (TSJ Cataluña 20-3-07, EDJ 128629).

- Moral harassment was considered to exist in the actions of a supervisor who demanded excessive productivity from the employee, making frequent derogatory references to the employee's age. In addition to an excessively exhaustive control of his work, the supervisor deprives him of certain profitable clients, of attendance at Christmas lunch and forbids him to have coffee with his female colleagues. He is frequently told that his age would make it difficult for him to find another job, which leads to various reactive pathologies, both physical and psychological (JS Valladolid núm 2 2-10-06, EDJ 298045)

WHO'S COVERED?

The general prohibition against discrimination that is laid down in the Constitution extends to all Spanish nationals and foreigners in Spain. However, only employees who work under an ordinary or special employment relationship can seek the protection of the employment courts against direct or indirect discrimination, with the exception of civil servants.

WHAT ENFORCEMENT/REMEDIES EXIST?

Discrimination can give rise to cumulative liabilities in various jurisdictions both for the company and its executives.

Criminal jurisdiction

Criminal jurisdiction is contained in the Spanish Penal Code (Código Penal), in the chapter on offences against worker's rights and infringements of the employment legislation classified as crimes. The specific prohibition against discrimination in employment is governed by Article 314. As per this article, it is a criminal offence if an employer, after receiving an administrative order or sanction for serious discrimination in public or private employment, on the grounds, amongst others, of sex or sexual orientation, to fail to restore the situation of equality by remedying the loss caused.

Civil jurisdiction

Civil jurisdiction is contained in Articles 1101 and 1902 of the Spanish Civil Code (Código Civil), which impose liability in contract and tort.

Administrative jurisdiction

An employer may be in breach of Regulation RD 5/2000, Aufust 4, which approves the revised text of the Law on Infractions and Penalties in the Social Order, if it takes a unilateral decision, which results in either

(i)              unfavourable direct or indirect discrimination in terms of age or disability; or

(ii)            favourable or unfavourable discrimination on training and promotion, pay, working time and any other terms of employment, on the grounds of sex, origin, marital status, race, social condition, religious belief, political ideas, membership or non-membership of a trade union, family relation with other employees of the company, language reasons within the Spanish territory; or

(iii)          (iii) unfavourable treatment as a retaliation of claims filed against the company, including those administrative or judicial actions filed to demand the compliance of equality principle and non-discrimination. Breach of Regulation RD 5/2000 is punishable by fines of between EUR 7,501 and EUR 225,018.

Employment jurisdiction

As per the Workers' Statute, an employee who has been discriminated against may file a claim before the judge to have the discriminatory act declared void and to receive compensation for the loss suffered. There is no cap on the amount of compensation which can be awarded.

From a labour standpoint, the Spanish Constitutional Court has confirmed the burden of proof will be reversed in cases of discrimination. Provided the applicant brings evidence indicating that discrimination has occurred, the burden rests on the employer to demonstrate the existence of objective and reasonable grounds, unrelated to any discriminatory intent. Prior to presenting evidence, the employer must prove that the grounds for the decision were reasonable and necessary from a business perspective (Spanish Constitutional Court 135/1990).

The Labour Jurisdictional Law of 10th October 2011 (Ley Reguladora de la Jurisdicción Social) contains the procedural rules for discrimination cases (specifically Articles 95, 96, 108.2, 115.1 d), 122.2 a), 138.7, 148 c), 149.1, 165.1 a), 177 and 183.1).

Another way for the worker whose rights and dignity have been violated is to request, in accordance with art. 50 of the ET, the voluntary termination of his contract and the corresponding indemnity of 33/45 days' salary per year worked (art. 50.2. ET - SP/LEG/18609).

Another option is for the employee to go to the Labor and Social Security Inspection and report the facts. Once the facts are verified, the Labor Inspectorate can seek a solution to the conflict with measures of recommendation or warning to the company, or it can initiate the administrative sanctioning procedure for very serious misconduct in accordance with art. 8.11. of the Law on Infractions and Sanctions of Social Order (LISOS) (SP/LEG/3717).

A request for additional compensation for the damages caused can be added to this procedure, being necessary in any case the prior attempt of conciliation. The claim filed by the employee must contain the same detail and precision as that of the procedure for the protection of fundamental rights, and in both cases, it is necessary that the employment relationship is in force.

On the other side, there is a consolidated judicial doctrine regarding the competence of the social order to hear harassment claims by statutory personnel and civil servants.

- The ruling of the SC, Fourth Chamber of Social Matters of 18-5-2022 (SP/SENT/1150920) considers that the social order is competent to hear a lawsuit filed by statutory personnel for harassment at work derived from non-compliance by the Basque Health Service in matters of occupational risk prevention.

- The judgment of the SC, Fourth Chamber of the Social Court of 10-11-2021 (SP/SENT/1121962) declines the competence of the social order to hear a claim filed by a civil servant claiming damages for material and moral damages, due to the failure of the employer to adopt measures to prevent harassment at work.

Claims are usually brought in the administrative and employment jurisdiction.

HOW COMMON ARE CLAIMS?

Discrimination claims are not to frequent in Spain, perhaps due to the lack of press reporting however, discrimination in employment still occurs. Most relate to gender discrimination however, we are starting to notice an increase in race discrimination.

Age discrimination is particularly prevalent when candidates are applying for jobs, or when employees are terminated in a redundancy type situation (as it is a factor that may determine the selection of employees in redundancy dismiss\ls, in most cases with the acquiescence of the employees’ legal representatives). Age discrimination claims are often brought together with dismissal claims (or some other claim) as compensation for termination based on the employer’s breach or dismissal, is capped.

This type of claim is often used simply as a way of forcing employers to negotiate. However, since compensation is not capped for discrimination claims, employers often are required to invest more time and money to prepare an elaborate defence thereby putting pressure on them to settle the case.

What claims are most common and what are trickiest issues for employers?

Claims occurring at the recruitment and termination stage are particularly difficult.

Recruitment stage

According to article 4.2.c) of the Workers' Statute, job applicants may not be discriminated against with regards to access to employment.

It is a very serious violation of the prohibition against discrimination if recruitment conditions are advertised, or job offers are made, by any means that limit access to employment on the basis of any of the abovementioned grounds.

To achieve equality between men and women, however, the law expressly recognises and promotes affirmative action. Employers who hire workers who face difficulties in finding work, for example, young people, women between 16 and 45 years old, workers over 45 years of age, workers over 55 years old, employment of workers over 60 years old, etc.), are entitled to rebates on employer social security contributions.

Older workers, over 45 years of age, are often the preferred candidates to be expelled from the labor market in times of crisis and the propitiatory victims in all company restructuring processes, regardless of the modality the company's restructuring processes, regardless of the modality involved. Once they are in the circle of the outskirts of the world of work, it is very difficult for them to return to the labor market or, at least, that it takes place in reasonable terms in terms of its conditions. This makes mature workers a group that, in terms of active and passive employment policies, should play a major and passive employment policies should play a major role.

There are also rules concerning the compulsory employment of disabled employees (13/1982 Act and 27/2000 Royal Decree). Privately owned companies which have over 50 permanent employees are required to hire a number of disabled workers equal to at least 2% of the number of permanent employees on the payroll. In exceptional cases, companies may be wholly or partially exempt from this obligation. For State owned companies the obligation was recently increased by Royal Decree 2271/2004, of 3 December 2004, to 5% of a company's annual vacancies (including temporary positions).

Termination stage

The Law 3/2012 includes some measures which try to stop, or at least reduce the inclusion of employees over 50 years old in Collective Dismissals, according to the following scheme:

• Employers who decide to include employees over 55 years old, will have to sign a special agreement with the social security and pay for its contributions until the employee reaches the corresponding legal retirement age (see below).

• Employers with more than 100 employees who decide to include employees over 50 years old will have to pay the cost to the social security of the unemployment subsidy and the corresponding contributions. This obligation will only apply if the companies declared profits during the 2 previous years to the dismissals carried out or if the companies register profits in at least 2 consecutive financial years within the period between the financial year prior to the start of the collective redundancy procedure and the four financial years subsequent to that date.

We also expect discrimination claims when the employees are dismissed because, as explained before, since compensation for termination based on breaches by the employer or dismissal is capped by law, the way to obtain higher compensation is to add a discrimination claim to the claim for dismissal or some other claim. Therefore, this type of claim is often used as a way of forcing the company to negotiate to payment of a higher termination severance.

ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?

As above.

However, the discrimination claim could also be dismissed by Court if the employer demonstrates the existence of objective and reasonable grounds, unrelated to any discriminatory intent.

RETIREMENT AGES

The ordinary retirement age in 2023 is 66 years and 4 months in case of having contributed less than 37 years and 9 months. If you have contributed 37 years and 9 months or more, it is possible to retire at 65 years of age. Different retirement ages apply to individuals in different professions i.e. maritime workers, coal minimum workers, public servants, etc.

The ordinary retirement age has been progressively increasing since 2013 and is expected to be 67 years old by 2027.

As a general rule, retirement is voluntary for the employee.

A decision to dismiss an employee upon reaching the legal retirement age would be deemed to be a null and void,  and the employee would be entitled to be reinstated to his/her role, with payment of salaries accruing from the date of termination until the Court’s decision. The employee may also be entitled to receive an additional indemnity if his/her fundamental rights have been violated (by reason of age discrimination, etc.).

Likewise, the Law 3/2012 declared illegal any clauses included in Collective Bargaining Agreements (“CBA”) regarding mandatory retirement clauses signed after the passing of the Law. For those included into a CBA prior to the enactment of the Law on 6 August 2012 will remain valid until the expiration of the CBA. Hence, retirement cannot be imposed unilaterally by the employer.

INTERESTING CASES

Case law supports differences in treatment of old and young employees. In fact, the Constitutional Court has ruled that a certain degree of discrimination may occur, because the Constitution does not provide for equal treatment in the absolute sense and an employer may put forward arguments to support differences in treatment, provided that they are reasonable and objective.

An example of this is the judgment of the High Court of Justice of the Basque Country of 10 September 2002, in which an employee challenged a decision of his employer not to take on staff over a certain age. The Court took the view that the measure was not discriminatory because it was not unreasonable, given that the employer was trying to rejuvenate the company, although one of the Judges did dissent, saying that the measure was null and void because it was discriminatory.

Court rulings have declared the necessity of the party alleging age discrimination to at least show some piece of evidence supporting the discrimination (Resolution of the High Court of Justice of Madrid of 25 February 2010).

That being said, there have also been case precedents affirming that age discrimination took place in the workplace. One example is the judgment of the High Court of Justice of Madrid of 3 December 2003, which ruled that a dismissal was null and void because the company recognised that it was unlawful and it was shown that there had been numerous dismissals of employees of a certain age in question.

An example of a null and void objective dismissal due to age discrimination is given by the TSJ Madrid 20-12-22, EDJ 740624: The existence of sufficient evidence is declared to determine the violation of the fundamental right denounced. The worker was the only one affected by the termination measure; his job has not been eliminated and has been filled by a younger person, in spite of having positive performance evaluations. In addition, the company is promoting the generational renewal of the workforce, incorporating younger employees and producing the highest percentage of dismissals among older workers.

An example of the non-existence of age discrimination in the field of dismissals is given by TS 24-1-23: Age is not a cause of discrimination in a collective dismissal when different indemnities are established, depending on whether the workers are under or over 60 years of age. The indemnity criterion used by the company is reasonable and proportionate, as the workers over 60 years of age are very close to accessing the retirement pension, and can more easily enter into a special agreement with the Social Security.