When we talk about a pre-employment contract, we refer to a contract signed by the employer and the future employee, in order to establish the conditions that, later, will be reflected in an employment contract as such. It may also be called a letter of commitment to hire.
The labor pre-contract is carried out by few companies and serves to give the worker the assurance that in the future the labor contract will be formalized and guarantee the company the commitment of the worker.
It should not be understood as an employment contract, since it does not give the right to salary, nor to accumulate seniority, nor any similar labor obligation. It is simply a commitment to future hiring.
When is a pre-employment contract used?
The pre-employment contract takes place when a worker already has a job and receives a good offer from another company.
Leaving a job is complicated, so the new company makes a pre-contract where the position, functions, conditions are defined… In short, what is necessary to give the worker the confidence to change jobs with peace of mind. It is also used to hire highly qualified personnel or professional athletes.
It can also be employed when hiring foreign workers. A pre-employment contract in foreigners will be valid when the worker meets the condition of obtaining the residence and work authorization, and when the employer registers him in the Social Security.
Pre-employment contract model
The model of pre-employment contract will depend on the circumstances of each worker,the position to be performed and the conditions to be established.
In the pre-work contract model it is common to include a series of concepts:
- The expected date on which the employment contract will be signed in the future.
- The conditions that both parties undertake to meet,such as the completion of studies, obtaining a license, healing an injury, etc.
- The type of contract that will be signed in the future,the position offered, the functions of the job and the salary agreed, the schedule, the holidays …
- All agreements that are made,for example, for non-competition clauses, exclusivity clauses or compensation in cases where the contract is broken or not fulfilled.
- Proof of the acquisition of the authorizations and licenses necessary to work.
- Any other eventuality or condition that you want to reflect.
How the pre-employment contract is carried out in Spain
A pre-employment contract can be executed verbally or in writing. The negative thing about the verbal form is that it is difficult to prove if any problem arose. The written form is much more secure and creates the legal obligation of compliance.
It is not correct that a conversation in which the intention to hire someone is noticed is considered a pre-contract, because it is not so. Nor the announcement that you are a candidate for the position or that you are going to participate in the selection process.
For a pre-contract to be valid, there must be a clear intention to hire the worker in a certain future
with conditions agreed in advance.
This labor pre-contract, sometimes, is confused with the deferred employment contract.
The difference is that the first establishes a commitment to formalize an employment contract in the near future, while the second is an employment contract as such, which is signed on a date prior to the beginning of the employment relationship, for example, a football coach who signs in May, but does not start working until after the holidays.
What does non-compliance with the labor pre-contract mean?
As the pre-contract is a legal and signed document in which the parties undertake to acquire a series of obligations, its breach entails a series of consequences.
In the event that it is the worker who fails to comply, the company can demand the payment of compensation for damages,for example, for the expenses of the training or for the profits that they have stopped receiving because they cannot hire him.
It would be the same in the event that it was the company that breached the pre-contract,since the worker may have made some expenses, for example, in training, trips or removals. But this claim can only be limited to compensation, because it is not feasible to require the company to incorporate the worker.
The amount of compensation is not fixed by law,so its indication will be made depending on each case. What is possible to do is to set an amount in the pre-contract for cases of non-compliance.
To solve a breach of the labor pre-contract,whatever the offending party, a lawsuit must be filed in the Social Courts and provide all the evidence that exists.
The deadline for claiming a breach of the pre-contract is 1 year from the incident.
The figure of the pre-contract is not the most used in our country, but it is important to know it and consult professional
to defend our rights.