European Restructuring Monitor (ERM)
Eurofound's ERM database on restructuring-related legal regulations provides information on regulations in the Member States of the European Union and Norway which are explicitly or implicitly linked to anticipating and managing change.
51
Employee representatives (trade union section, works council or workers' delegate) must be the ‘last out’ in collective dismissals (where, within a period of 90 days, more than 5 employees are dismissed if dismissals affect the entire workforce; at least 10 employees in companies with fewer than 100 employees; 10% of the employees in companies between 100 and 299 employees; and 30 employees in companies with 300 or more employees). Senior executives cannot be dismissed as part of a collective redundancy if they are hired on a so-called high management contract (contrato de alta dirección).
Factors such as an employee’s age, length of service, personal circumstances and other criteria are taken into account when deciding which employees are going to be made redundant. However, these factors are not explicitly mentioned in the law. Article 51.2 forces the employer to detail in the notification of collective dismissals the criteria taken into consideration to select the workers to be dismissed. Criteria have to be objective and cannot hide any discrimination.
The regulation aims to ensure effective exercise of employees’ representatives rights by establishing that they will be the ‘last out’ in collective redundancies. As a result of this provision, regulation expects that employees’ representatives will have more freedom to protect worker’s rights in case of dismissals. This provision has not been questioned or discussed.
Eurofound (2015), Spain: Selection of employees for (collective) dismissals, Restructuring legislation database, Dublin, https://apps.eurofound.europa.eu/legislationdb/selection-of-employees-for-collective-dismissals/spain
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