Employment Newsletter February

Legislative Updates

1. Royal Decree 126/2026, of 18 February, establishing the minimum interprofessional wage for 2026

On 20 February, Royal Decree 126/2026 of 18 February came into force, setting the minimum wage ("MW") for 2026, which will be effective from 1 January 2026 at 1,221 euros per month in fourteen payments (compared to 1,184 euros in 2025). This represents an increase of 3.1%.

With regard to the rules for calculation and application:

1. Only cash remuneration is included in the MW calculation, and remuneration in kind cannot, under any circumstances, lead to a reduction in the MW.
2.  The review of the MW will not affect the structure or amount of the salaries received by workers when such salaries, as a whole and on an annual basis, are higher.
3. These payments are offset against the income that workers receive for all items on an annual basis and for full-time work, in accordance with legal or conventional rules, arbitration awards and individual employment contracts in force.

2. Royal Decree-Law 3/2026, of 3 February, on the revaluation of public pensions and other urgent measures in the field of social security

It establishes the following changes with effect from 1 January 2026:

1. The maximum Social Security contribution bases are now 5,101.20 euros per month.
2.  The contribution corresponding to the Intergenerational Equity Mechanism ("IEM") is set at 0.90%, of which 0.75% corresponds to the company and the remaining 0.15% to the worker.
3.  The additional solidarity contribution provided for in Article 19 bis of the General Social Security Law ("GSSL") will be applied, with rates of 1.15%, 1.25% and 1.46% distributed in three brackets on remuneration exceeding the maximum contribution limit.

Case law

1. The 5-day paid leave to look after family members may be taken after the day of the accident or hospitalisation

Judgment of the Supreme Court, Social Chamber, No. 126/2026, of 4 February 2026

The Social Chamber of the Supreme Court (“SC”) dismisses the cassation appeal lodged by the company, upholding the judgment of the National Court (“NC”) which declared unlawful the company's practice requiring that the 5-day paid leave to look after family members in the event of an accident, serious illness, hospitalisation or surgery under Article 37.3.b of the Workers’ Statute (“WS”) to start on the day of the qualifying event.

The SC finds that neither Article 37.3.b WS, nor the applicable collective agreement, nor Directive (EU) 2019/1158 contains any rule regarding the time at which the leave must take effect. The SC concludes that the principal purpose is the care of the patient, whose needs are not exhausted in the five days immediately following the triggering event, and a rational distribution of the paid leave must be considered. Finally, the SC distinguishes between hospital discharge and medical discharge: the leave may be taken after hospital discharge provided that there is no medical discharge.

2. Early partial retirement does not constitute a subjective right of the worker

Judgment of the Supreme Court, Social Chamber, No. 68/2026, of 27 January 2026

The SC dismissed the cassation appeal for unification of doctrine filed by a worker seeking early partial retirement after reaching the age of 62 under Article 50 of the XXIII collective bargaining agreement for railway contractors. However, the company rejected the employee's partial retirement request on the grounds that there was no obligation under the collective-agreement, a lack of company consent, and the difficulty of finding a person with the needed profile to replace him.

The SC recalls that, according to the provisions of Article 215 of the GSSL and Article 12.6 of the WS, although workers who meet the requirements are entitled to access partial retirement, the company is not legally obliged to accept the proposal or to formalise the relief contract. Likewise, the provision in the collective agreement constitutes a measure to encourage or promote partial retirement, but it does not impose on the employer a duty to accept applications for partial retirement.

3. During the 8-week parental leave, annual leave accrues, and where taken on a discontinuous basis it must be in minimum periods of one week

Judgment of the Supreme Court, Social Chamber, No. 62/2026, of 26 January 2026

The SC ruled on a cassation appeal in a collective dispute concerning the interpretation of (unpaid) parental leave of up to eight weeks for the care of children under the age of eight (Article 48 of the WS).

The legality of two practices carried out by the employer was questioned: (i) requiring that , where taken discontinuously, the leave be taken in minimum periods of one week, and (ii) not counting time spent on parental leave for the accrual of annual leave.

The SC confirmed that discontinuous leave must be taken in full weekly periods, as Article 48 bis of the WS uses the term "weeks" in plural when it establishes that leave shall last for up to eight "continuous or discontinuous" weeks. Additionally, with regard to the accrual of holiday entitlement, relying on Article 10.1 of Directive (EU) 2019/1158, which guarantees the maintenance of rights acquired during parental leave, the SC holds that parental leave must be treated as actual working time for the purposes of calculating holiday entitlement, given that it shares the purpose of promoting shared responsibility and work-life balance with other types of leave of this nature.

4. Damages compensation of 30,000 euros for the breach of trade union rights by denying union delegates access to notice boards, company information, and paid time off for union duties

Judgment of the Supreme Court, Social Chamber, No. 32/2026, of 15 January 2026

The CCOO Services Federation filed a claim for the protection of fundamental rights before the NC, alleging that, despite multiple requests by email and even a complaint to the Labour Inspectorate ("LI"), the company had systematically denied: (i) access to electronic means and union notice boards; (ii) the information due to union delegates (basic copies of contracts, amendments, working hours, vacancies and staff reductions); and (iii) the recognition and respect of facility time to exercise their duties. The unions sought an order for the cessation of the alleged anti-union conduct and compensation of 30,000 euros in damages.

The NC upheld the claim and the SC confirmed the judgment. The SC concluded that: (i) the company failed to prove that it had provided the requested information to the trade unions in accordance with Article 10 LOLS, noting that referring to unitary representation bodies to internal electronic portals does not satisfy this obligation, given the different functions and powers of unitary and trade union representation; (ii) the fact that a physical notice board was installed in one of the workplaces only after an LI requirement, and that the digital notice board was enabled only after the claim was filed, revealed bad faith, and (iii) in relation to facility time to perform their trade union tasks , the evidence established the company's refusal to grant it, the existence of improper charges, and the failure to compensate the time spent by prevention delegates on their representative duties outside their ordinary working hours.

5. Damages compensation of 22,503 euros for violation of freedom of association, due to failure to disclose employees' remuneration

Judgment of the Supreme Court, Social Chamber, No. 30/2026, of 15 January 2026

The trade unions CSIF, UGT and CCOO brought an action for the protection of fundamental rights against Paradores de Turismo de España SME S.A. before the NC, alleging that the company had refused to provide the wage bill submitted to the Ministry of Finance and the resolutions authorising the pay increases, having only provided data relating to staff covered by the applicable collective bargaining agreements, but not those not covered by them. The NC upheld the claim.

The SC upheld the NC's judgment and held that the wage bill falls within the scope of the right to information under Article 64 of the WS, as it is necessary for monitoring compliance with labour regulations and equal pay obligations. The SC further concluded that: (i) the wage bill does not constitute a trade secret, and that its confidential nature merely entails a duty of confidentiality on the part of employee representatives in accordance with Article 65.2 of the WS, without preventing its disclosure; and (ii) from a data protection perspective, disclosure of the wage bill is justified on the grounds that the processing is necessary to comply with a legal obligation, such as the duty to provide information under Article 64 of the WS.

6. The “one-month” period for work absences must be calculated from date to date, not by calendar months

Judgment of the Supreme Court, Social Chamber, No. 1283/2025, of 19 December 2025

An employee was dismissed for not going to work on four occasions between April and June 2023. The Social Court initially upheld the dismissal as justified. However the Social Chamber of the High Court of Justice ("HCJ") of Madrid overturned the judgment on the grounds that the one-month period referred to in the collective bargaining agreement for assessing absences as very serious offences must be calculated by calendar months. Therefore, the HCJ of Madrid concluded that the number of offences necessary to constitute a very serious offence punishable by disciplinary dismissal had not been met, rendering the dismissal unjustified.

The SC upheld the cassation appeal for unification of doctrine filed by the company and held that: (i) if the calendar-month criterion were adopted, days of absence would be excluded from the calculation which, due to their temporal proximity to those in the previous or following month, are significant for assessing the employee's non-compliant conduct; (ii) Article 5 of the Civil Code expressly provides that periods referring to months must be calculated from date to date; and (iii) the applicable collective agreement was published prior to the repeal of dismissal for absenteeism under Article 52 d) of the WS, so the negotiators of the collective bargaining agreement were aware of the Supreme Court's doctrine and chose not to include any special provisions on this matter.

7. Priority of sectoral collective bargaining agreements over earlier company collective agreements in terms of salary

Judgment of the Supreme Court, Social Chamber, No. 1281/2025, of 18 December 2025

A trade union filed a lawsuit requesting the annulment of the 2021 salary scales of a company collective bargaining agreement ("CBA") on the grounds that they were lower than the salary scales of the state collective agreement for the sector published subsequently. The NC dismissed the lawsuit stating that, in accordance with Article 84.1 of the WS, the first-negotiated and applied CBA takes precedence over any subsequent agreement of a different scope regulating the same matters. The previous CBA precludes the application of the subsequent CBA in matters already regulated.

However, the SC upheld the appeal lodged by the trade union and recalled that the sixth transitional provision of Royal Decree-Law 32/2021 sets 31 December 2022 as the deadline for eliminating the remuneration priority of the company CBA over the sectoral CBA. From 2023 onwards, the sectoral CBA will prevail on remuneration matters, even if the company agreement remains in force (Article 84.1 of the WS applies, with the exception of the amended Article 84.2). So, the 2021 salary tables of the company CBA published in 2023 had to be aligned with the national sectoral CBA.

8. The unilateral cancellation of the Christmas dinner constitutes a substantial modification of working conditions

Judgment of the National Court, Social Chamber, No. 176/2025, of 23 December 2025

A trade union filed a collective dispute, challenging the communication sent by the company informing that no Christmas lunch or dinner would be organised in 2025. The trade union argues that this celebration constitutes an acquired right or more favourable condition ("MFC"), and it should have been carried out through the substantial modification of working conditions procedure under Article 41.4 of the WS.

The NC upheld the claim and concluded that the celebration of Christmas lunches or dinners paid for by the company, which had been held continuously since 2012 and was only interrupted in 2020, constituted a MFC. The NC applied the doctrine of the SC and recalled that the company’s mere claim that the benefit was gratuitous cannot outweigh objective evidence to the contrary (such as the same company's practice over more than 12 years). The fact that the company did not financially compensate those who did not attend the celebration does not alter this conclusion.

9. Violation of the right to privacy by requiring employees to show the contents of their bags and the IMEI number of their mobile phones on a daily basis when leaving the workplace

Judgment of the High Court of Justice of the Basque Country, Social Chamber, No. 272/2026, of 27 January 2026

A company's security protocol required that all employees, upon leaving the workplace, open their bags and display their contents to security staff, and show the International Mobile Equipment Identity ("IMEI") numbers of their mobile phones. The claimant filed a claim for the protection of fundamental rights before the Social Court No. 2 of Bilbao, alleging a violation of her rights to privacy and dignity. The court upheld the claim, declared the breach of the fundamental right, ordered the cessation of the conduct and awarded compensation for moral damages in the amount of 7,251 euros. The company filed an appeal.

The HCJ of the Basque Country applied the triple test of constitutionality and held that the measure: (i) failed the necessity test (the company did not demonstrate any suspicions concerning the claimant or any thefts or disappearances justifying daily checks); (ii) failed the proportionality test (requiring disclosure of the IMEI number, a piece of confidential information, constitutes a manifest excess); and (iii) failed the suitability test (the company did not show that less invasive measures were unavailable). The HCJ of the Basque Country upheld the lower court's ruling and confirmed the violation of the right to privacy.

10. The delivery of the final settlement after the temporary incapacity but before the recognition of total permanent incapacity, constitutes a dismissal

Judgment of the High Court of Justice of Galicia, Social Chamber, No. 5557/2025, of 10 December 2025

After exhausting the temporary disability period and its extension, and following the opening of permanent disability proceedings notified by Social Security authorities, but prior to the administrative decision concerning the permanent disability, the company delivered to the worker the final settlement ("finiquito") and severance document. Days later, the worker was recognised as having Total Permanent Incapacity ("TPI").

The worker filed a claim for dismissal and the court understood that there had been no dismissal, but rather a suspension of the contract with retention of the position (pursuant to Article 48.2 of the WS for the processing of disability), and referred to a possible request by the worker for adaptation of their workplace, or relocation.

The plaintiff appealed and the HCJ of Galicia declared the dismissal null and void on the grounds of disability discrimination. The HCJ held that the payment of the severance, prior to the Social Security authority's decision to recognise the TPI, had extinctive and liberating effects and constituted dismissal. Furthermore, in light of the doctrine of the CJEU (case C-631-22) and Article 5 of Directive 2000/78/EC, it understood that, even before the reform of Article 49.1 e) of the WS, the company failed to comply with its obligation to: (i) adapt the workplace, or (ii) relocate the worker. As the evidence of discrimination was not refuted and the unfeasibility of adjustments was not proven, the termination was classified as discriminatory and, therefore, null and void, with reinstatement and back pay.

Keep an eye on

1. The deadline for notifying the IWPA of the person responsible for the Internal Information System is 10 April 2026

Entities bound by Law 2/2023 of 20 February, regulating the protection of persons who report regulatory infringements and the fight against corruption, which have already appointed a Responsible of the Internal Information System ("RIIS") must notify the Independent Whistleblower Protection Authority ("IWPA") of their appointment before 10 April 2026.

Legal entities with 50 or more employees, entities subject to European sectoral regulations, political parties, trade unions and business organisations that manage public funds are required to have an Internal Reporting System. As confirmed by Article 8 of the aforementioned Law 2/2023, the administrative or governing body of each obligated entity must formally appoint a natural person or collegiate body as the RIIS, responsible for managing the internal channel and processing the communications received.

Once this initial communication has been made, future appointments or dismissals of the RIIS must be communicated within the following ten working days using the form available on the IWPA's website.

2. Public consultation opened on the Draft Royal Decree transposing Directive (EU) 2022/2041 and reforming the rules on set-off and absorption of the SMI

The Ministry of Labour and Social Economy has opened a public consultation process, from 2 March 2026 to 20 March 2026, on a draft Royal Decree transposing Directive (EU) 2022/2041 on adequate minimum wages in the European Union and establishing clearer limits on the set-off and absorption of the Spanish statutory minimum wage (SMI). The draft expressly excludes certain salary supplements from set-off, including those linked to working conditions (night work, toxicity, arduousness, hazardousness, shift work or availability), personal circumstances (seniority, training or residence) or work performance (incentives, productivity bonuses or commissions). The SMI must be paid in full and these supplements must be added on top of it; additionally, non-salary payments may not be taken into account for these purposes.