The employment relationship for domestic household service is governed by Royal Decree 1424/1985. It is established between the householder (acting as employer) and the domestic worker (employee), whereby the latter agrees to provide domestic services on a paid, dependent, and employed basis at the householder's primary residence. Such services include household care, childminding, supervision, gardening, and similar tasks.
Written by Josep Conesa
Employment and insolvency lawyer
* The employer is the owner or occupier of the private home or residence where the service is provided. Even though the Spanish Law on Occupational Risk Prevention does not apply to domestic settings, the householder is still obliged to ensure that the employee works under appropriate health and safety conditions. Failure to do so may constitute valid grounds for the employee to terminate the contract at their own initiative.
* The employee is the person who provides domestic services on a paid basis.
The arrangement may be permanent or continuous, where the employee works for a single employer for more than half of the standard working hours, or discontinuous or part-time, where the employee works for several employers for less than half of the standard working day.
Situations where the domestic worker has been hired by a legal entity fall outside the domestic service employment relationship and are instead governed by standard employment law. It is now common to find companies offering domestic services to private individuals, sending their own employees to the client's home to carry out such work. In these cases, the private individual contracts with the company and makes payment to that company. The relationship between the worker and the company is then a standard employment relationship.
Also excluded, unless proven otherwise, are services performed as a gesture of friendship, au pair arrangements, acts of goodwill or neighbourliness, and arrangements between family members where the person providing the service does not hold the status of an employee. Activities or services carried out outside the family home, or unrelated to it, also fall outside this special employment relationship.
The employment contract: A domestic service contract may be entered into in any form and for any duration, whether written or oral. In the absence of a written agreement between the parties, the contract is presumed to be for a fixed term of one year, automatically renewable for successive annual periods unless either party gives notice at least seven days before the contract's expiry date. The first 15 days are presumed to constitute a probationary period.
Remuneration: salary may be freely agreed between the parties, provided it respects the statutory salary floor. It may also be agreed with the employee that part of the salary is paid in kind, provided this does not exceed 45% of the total salary, and may take the form of board, accommodation, utilities such as electricity and water, and similar benefits.
Working time: The standard maximum working week is 40 hours. Daily hours may not exceed nine, and there must be a rest break of at least 10 hours between shifts for external (live-out) workers, or 8 hours for internal (live-in) workers. Once the working day ends, the domestic employee is under no obligation to remain in the home. Time spent on-call, that is, periods during which the employee is available to the employer but is not carrying out any active duties, does not count towards working hours.
Termination of the employment contract: The employment contract may be terminated:
· By mutual agreement between the parties.
· On grounds validly set out in the contract, provided these do not constitute an abuse against the employee.
· Upon expiry of the agreed term.
· By resignation of the employee.
· Upon the death, severe disability, or permanent total or absolute incapacity of the employee.
· Upon retirement of the employee.
· Upon the death or incapacity of the employer where this makes it impossible or significantly difficult to continue the employment relationship.
· By reason of force majeure.
· At the employee's initiative due to a breach by the employer, the consequences of which are treated as equivalent to unfair dismissal.
· By dismissal of the employee: if disciplinary, it must be carried out in writing and must cite a valid and lawful ground. If the competent employment tribunal finds the dismissal to be unfair, the employee must be compensated at a rate equivalent to 20 calendar days' salary for each full year of the contract, including any extensions, up to a maximum of twelve monthly payments.
· By withdrawal from contract by the employer, with 20 days' notice where the contract has lasted more than one year, or 7 days' notice where it has lasted less, or by paying the equivalent amount in lieu of notice. In this case, compensation is equivalent to 7 days' salary per year of service, up to a maximum of six monthly payments.
Social Security: The obligation to make Social Security contributions arises from the moment the domestic employee begins providing their services.
Each employer is required to register with Social Security, and where applicable to affiliate, any domestic employee hired to provide household services at their home on an exclusive and permanent basis.
It is also the head of household who bears the obligation to pay the Social Security contributions when they have employed a domestic worker providing services on an exclusive and permanent basis. As noted above, this refers to an employee who works for a single employer for a duration exceeding half of the standard working day.
Part-time employees: These are employees who provide services at several private households, or on a non-permanent basis.
Remuneration is calculated in proportion to hours actually worked, and the salary must include a pro-rata share of pay for Sundays and public holidays, annual leave, and two additional bonus payments each equivalent to 30 days' salary.
In this case, it is the employee who is responsible for paying Social Security contributions and for completing their own registration and affiliation. They must always meet the following requirements:
· Work a minimum of 72 hours per month and no more than 80 effective working hours.
· Those 72 hours must be spread across working days totalling no fewer than 12 days per month.
Within six calendar days of the start of the relevant activity, the employee must submit the documentation required as standard, and must additionally provide a declaration from each head of household for whom they provide services, setting out the duration and other conditions of the part-time and non-continuous service arrangement.
