Businesses face fines of up to €225,018 if they deliberately exclude employees from Christmas parties, bonuses or other workplace perks as retaliation for asserting their employment rights, it has emerged.

According to labour lawyer Luis San Jose, while companies are free to decide whether to offer such gifts, they cannot use them to punish staff who have challenged the business.

‘A company can choose the gift, its cost and its purpose,’ he told business publication Diario A y E.

‘What it cannot choose is to use it to distinguish between obedient employees and those who stand up for their rights.’

The warning follows a recent ruling by the High Court of Justice of Catalonia, which found that a company unlawfully excluded the only employee who had successfully challenged his dismissal, contested a disciplinary sanction and taken legal action over unpaid overtime.

The firm gave Christmas hampers to 28 of its 29 employees but left him out. Judges ordered the company to hand over the €149 hamper and pay the worker a further €1,000 in compensation for moral damages.

When can employers exclude staff?

San Jose stressed that businesses are not required to treat every employee identically in every situation.

A company may legitimately restrict rewards to employees who worked on a particular project, met measurable targets or belong to a specific department.

However, any distinction must satisfy five key conditions:

• The rule must exist before the decision is made.
• It must apply equally to everyone in comparable circumstances.
• It must serve a legitimate business purpose.
• It must be proportionate.
• The company must be able to document and justify how the rule was applied.

Examples of lawful exclusions include project-specific dinners, performance-related bonuses based on objective targets, events with limited capacity allocated by ballot or registration order, benefits limited to a particular workplace or department, and gifts only available to staff employed on a pre-announced qualifying date.

What employers should avoid

The legal risks increase sharply where exclusions appear linked to personal disputes or employees exercising their legal rights.

According to San Jose, employers should never exclude workers because they have:

• filed a legal claim against the company;
• reported the business to the Labour Inspectorate;
• claimed unpaid overtime;
• undertaken trade union activity;
• taken maternity, sick or parental leave; or
• are protected because of pregnancy, disability, sex or other characteristics covered by Spain’s equality laws.

Courts also look closely at warning signs such as excluding only one employee, changing the explanation for the decision, lacking any written policy or imposing the exclusion shortly after the worker exercised their legal rights.

Burden shifts to the employer

If an employee can show evidence suggesting retaliation, Spanish law shifts the burden of proof onto the employer.

The company must then demonstrate that its decision was entirely objective, based on a pre-existing rule and would have been applied regardless of whether the employee had previously brought legal claims.

Fines can reach €225,018

In addition to compensation ordered by the courts, employers could also face administrative penalties if their conduct amounts to a very serious breach of Spain’s Labour Infringements and Sanctions Act (LISOS).

The available fines range from:

• €7,501 to €30,000 (minimum)
• €30,001 to €120,005 (medium)
• €120,006 to €225,018 (maximum)

However, San Jose noted that such fines are not automatic and would only be imposed if the Labour Inspectorate opened a sanctions procedure and concluded that the employer’s conduct met the legal threshold for a very serious infringement.