Recruitment and employment relationship of domestic workersr
From 2004 to the present day, the number of domestic workers has increased considerably, ranking according to the INE in the last period ( 2010-2016) in 425,456 employees registered with social security, most of whom are women and immigrants.
This is a special regime, since employers are not businessmen, and regulated by the Royal Decree 1620/2011, of November 14, by which regulates the Special Employment Relationship of the Family Home Service.
According to this Royal Decree, its qualification as special employment relationship is due to the particular conditions in which the activity of the people who They work in domestic service, conditions that can be perfectly observed since the employed person develops his work activity in the family home, is linked to the family and its intimate life, and, of course, requires a certain amount of trust both for the employer, when arranging his home, and for the worker, having to carry out his activity in it, knowing intimate aspects of the family.
For these reasons, it was considered appropriate to establish a first regulation in 1985, which was followed by the Royal Decree that we are going to analyze. We will study the basic aspects of this law, in order to understand and defend the rights that assist us as employers or employees.
The contract for domestic workers
(arts. 4, 5, 6 and 11 of rd1620/2011 of November 14)
Employers may hire a domestic worker directly or through public employment services. This should always be done, of course, without any type of discrimination based on sex, race or other circumstances. One of the most used ways to search for a worker or to search for work is through an advertisement.
The contract can be made in both forms, oral or written. However, if we want a contract for a certain period of time, it must always be in writing. This question is important, because in the event of having entered into an oral contract, it will be understood to be indefinite and full-time when its duration is greater than 4 weeks. The aim is to avoid any type of illegal contracting, which is very common in this sector.
On the other hand, as it is an employment relationship of a special nature due to the circumstances explained above, the regulation grants a trial period if desired, but can never exceed two months.
Regarding the termination of the contract, it can be done by any of the parties, always respecting the notice period established between them (< em>although there are exceptions).
Let’s see how it should be done in each case:
- Employer: the employer may terminate the employment relationship through disciplinary dismissal or through withdrawal.
- Disciplinary dismissal:
- It must be done through written notification, and for the reasons established in the Workers’ Statute.
- The dismissal letter must indicate the effective date, even if it is the same as the date of notification to the worker.
- No notice period is required, however to avoid future problems due to a possible nullity or unfairness of the dismissal, it is advisable to notify 15 business days in advance.
- Withdrawal : consists of breaking the employment relationship by the simple will of the employer:
- It must be done in writing, without the need to allege a cause.
- The employer’s desire to terminate the employment relationship must be expressly indicated in the dismissal letter.
- Notice period: a notice period of 20 days is established if the duration of 1 year has been exceeded, and 7 days in other cases.
- If desired, the employer can replace this notice period with compensation equivalent to the wages for said period, which must be paid in cash
- Compensation: in addition to the dismissal letter, the employer must compensate the worker, which will be paid entirely in cash, for an amount equivalent to 12 days per year worked, with a limit of 6 monthly payments.
- Disciplinary dismissal:
In addition, a special regime is established for internal workers.
If an employer decides to fire an internal worker, it may not do so, neither disciplinary action nor by withdrawal, between 5:00 p.m. and 8:00 a.m. the following day, unless the dismissal is due to a very serious offense that has completely broken the trust between employer and employee. This is done in order to prevent the worker from being left homeless, without a home to be in on the day of dismissal.
- Worker: the household employee may resign at any time during the duration of the contract, unless a notice period has been stipulated in the contract, which in this case must be respected. li>
Salaries of domestic workers
(art. 8 of RD 1620/2011 of November 14)
The salary interprofessional minimum, will be established by the Government each year. For domestic employees, the same rules are established as those established in the Workers’ Statute.
Likewise, family home service workers will be entitled to two extraordinary bonuses per year that they will receive at the end of each semester of the year , unless otherwise agreed between the parties.
On the other hand, in the event that the worker performs his activity by the hour, the minimum wage will be the one established annually in the Royal Decree for this type of worker, but with a paragraph, It must be paid in full in cash.
Working time of domestic workers
(Art. 9 of RD 1620/2011 of November 14)
Regarding the working day, for domestic employees it will be the one established in the Workers’ Statute, that is, a maximum weekly workday of 40 hours. However, unlike the Statute of Workers, with respect to part-time workers, the registration of the working day will not be mandatory.
On the other hand, between the end of one day and the start of the next there must be a rest period of 12 hours, and workers will also have the right to a weekly rest of 36 consecutive hours that must be carried out at the worker’s choice, the entire Sunday and the afternoon of Saturday or the morning of Monday.
Regarding vacations, the provisions of the Workers’ Statute will apply, that is, the worker will have the right to 30 annual vacation days and the enjoyment of permits and parties.
This article has sought to briefly summarize the main issues regarding this special regime for domestic employees.
Before entering into any employment contract, all the particularities established by labor laws and the agreements specific to each sector must be taken into account to avoid future problems, and to do everything correctly. tight.
Our labor law department> is at your disposal for any questions about the hiring and employment relationship of domestic workers.