Lawyers Executives

1º- At the beginning of the contract: In addition to the normal written requirements, identification of the parties, remuneration, etc., a trial period of up to 9 months can be agreed (art. 5) and the duration agreed by the parties. These contracts represent a notable difference with respect to ordinary contracts in which the normal requirement is the indefinite nature of the same and the trial period is 15 days for those who are not qualified and up to 3 months for the others, except for qualified technicians for whom it can be up to six months, in these non-special employment relationships.

2º- During the term of the contract: Greater freedom of agreement or the setting of specific conditions is allowed, both in terms of total remuneration (in cash or in kind, Art. 4.2 C) and in terms of working hours and timetables (Art. 7), whose limits are not limited or set by agreements, by-laws or regulations.
The conclusion of other contracts with other companies is not permitted without the authorisation of the employer or a written agreement to the contrary, unless the link with another entity is public and has not been excluded in the contract of a special nature to which we are referring, in which case the regulations establish the presumption of authorisation (Art. 8).
According to Art. 15, the remuneration of senior management personnel enjoys the guarantees referred to in Articles 27.2, 29.2 and 32 of the Statute, i.e. the unattachability of the amount of the Minimum Interprofessional Wage, all those relating to settlement and payment, as well as the guarantees of the credits on the salaries of the last 30 days and up to the amount representing twice the minimum wage.

This type of contract can be suspended with the effects and for the cases foreseen in Art. 45 ET (Art. 15.2 RD), with Art. 59 ET also applying with regard to the expiry of actions, including dismissal.
Any reference to the liability of FOGASA is omitted.
The rules of ordinary labour legislation will not apply, unless expressly referred to in RD 1382/85 itself or specifically stated in the contract (Art. 3), which is why Art. 3.3 stipulates that for matters not regulated in these sources, the provisions of civil or mercantile legislation and its general principles will apply, in terms of substantive law, since in procedural matters, the labour order of the ordinary jurisdiction will be competent by express provision (Art. 14 RD).

Art. 9 provides for the situation of internal promotion within the company, a change from an ordinary employment relationship to a special one, with the requirements of written form and its consequences.

3º- At the time of termination:

In addition to the possible termination at the will of the manager, there is also the possibility of obtaining the indemnified termination of the employment relationship at the request of the employee if, within a period of three months after the succession of the company or a significant change in the ownership of the company has taken place.

In these cases, the managerial employee has the right to the compensation agreed in the contract (Art. 10.3), or that which corresponds to cases of resignation of the employer, or the cause is serious non-compliance on the part of the employer, which, if present, exempts the advance notice required in the other cases.

In addition to cases of serious and culpable breach by the senior manager, the relationship may be terminated by the employer with the general requirements and consequences of any employment contract (art. 55ET, or 11.2 RD).

In the event of termination of the contract, the provisions of the contract will apply if compensation has been established, in the event that it has been omitted, the provisions of the RD will apply, which will be 7 days per year and with the limit of six monthly payments (Art. 11), BEARING IN MIND that the compensation may be established by mutual agreement between the parties.

If the employer does not give notice, the managerial worker is entitled to compensation equivalent to the wages for the period of notice not given by the employer.
The rules for termination of the contract set out in the ET also apply.

4º. After the special employment relationship has ended:

This type of contract has the peculiarity of being able to impose the obligation not to engage in an activity that is the same or analogous to that of the company in which he/she left (non-competition agreement), provided that the employer has an industrial or commercial interest in this and that financial compensation is paid to the manager (art. 8.3).

In accordance with the provisions of Royal Decree 1382/85 of 1 August 1985, which regulates the senior management contract, senior managers are considered to be those employees who exercise powers inherent to the legal ownership of the company and relating to its general objectives, with autonomy and full responsibility, only limited by the criteria and instructions directly or emanating from the person or from the governing and administrative bodies of the company.

There is a reciprocal trust between the manager and the company as such, derived from the manager's unique position in the work environment.
In the characterisation of the senior manager, we must distinguish:

A) - Administrators and Directors: These are natural persons who hold positions as administrators or directors in companies, organised in the form of a company. They usually exercise these positions on a collegiate basis.

Their relationship with the employer (the legal entity) is that derived from representation, normally in accordance with the articles of association, and their exclusion from the application of labour regulations is imposed by the fact that there is no employment contract.

The fact that they are directors does not mean that if they also work for something else they are no longer excluded, but that they may be included by virtue of other work that they carry out in the company.

On the other hand, the partner is not a worker, but his status does not prevent him from being a worker, either ordinary or special, unless he is precisely an excluded director, which does not mean that he can be one in any case, it has to be seen in these cases which status, whether that of partner or worker, is the dominant one.

B) - The Senior Manager: this is considered to be those workers who exercise powers inherent to the legal ownership of the company and relating to the general objectives of the same, with autonomy and full responsibility, only limited by the criteria and direct instructions or those emanating from the person or from the governing and administrative bodies of the entity.

It can be defined in two ways:
a) - Negatively: excluding from it those included in Art. 1.3 ET (The activity that is purely and simply limited to the mere performance of the position of director or member of the administrative bodies in companies that have the legal form of a company and provided that their activity in the company only involves the performance of tasks inherent to such a position).
b) - Positively: Those workers who exercise powers inherent to the legal ownership of the company and relating to the general objectives of the company, powers that must be exercised with full autonomy and responsibility, only limited by the criteria and direct instructions emanating from the owner of the company or its governing bodies, are considered senior management personnel.

Senior management personnel is delimited in a very restrictive way by the courts, let's look at some of them:

• The senior manager only has as a superior the corporate body of the company, or the person, who occupies the position of the owner of the company.
• The senior manager therefore receives the powers inherent in the legal ownership of the company; this is a first-degree delegation.
• The scope of action refers to the company as a whole, without prejudice to possible functional specialisation, so that senior management as a whole covers the functional objectives of the company.
• They are governed by the principle of autonomy and full responsibility.

The reason for the exclusion of the senior manager is to be found in the unique relationship of trust that links him/her to the employer, which makes it difficult to apply the common rules of the employment contract, especially those on its termination, because it is the interests of the employer that are entrusted to the senior manager within the company.

The regulation contained in the Decree is characterised by its fragility, referring to the will of the parties, reducing the necessary law to a minimum, a position that is reinforced by the fact that it is based on reciprocal trust, and the fact that it is not governed by the TE, but is governed by civil or commercial law (art. 3.3).