Higher Category Duties: Do They Have to Pay You More in Spain?

Your supervisor leaves and you are asked to do their job “in the meantime”. Months go by, you keep doing it and your payslip does not change. If this sounds familiar, you should know that performing duties of a higher category in Spain has clear consequences: Article 39 of the Workers’ Statute (Estatuto de los Trabajadores) gives you the right to be paid according to the duties you actually perform and, if the situation drags on, to claim a promotion or the filling of the vacancy. In this article I explain it through the case of Nelson: what you can claim, how to prove it and what happens in the opposite case, when you are assigned lower duties.

If you are doing the work of another position and want to know what you are entitled to, you can write to Fernanda Vargas, employment lawyer in Madrid, on WhatsApp or book an appointment on Calendly.

“It’s Temporary”: Nelson’s Eight Months as Traffic Manager

Nelson is 40 years old, Venezuelan, and holds a long-term residence permit. He works as an administrative assistant at a transport company in Bilbao.

Eight months ago the traffic manager retired. Nelson’s supervisor asked him to “handle it while they look for someone”. Since then, Nelson plans the routes, assigns the trucks, deals with the clients and signs the incident reports. In practice, he is the company’s traffic manager.

But he is still paid his assistant’s salary. Under his collective agreement (convenio colectivo), a traffic manager earns about €400 more per month than he does (an illustrative figure, for the example). Nobody has informed the works council and the vacancy has not been advertised. When Nelson asks for a raise, the answer is always the same: “it’s temporary”.

The good news for Nelson is that the law does not look at the label the company puts on his situation, but at what he does every day. Let’s go through it step by step.

What Functional Mobility Is and When It Is Allowed

Functional mobility (movilidad funcional) is the employer’s ability to change the duties you perform in your job, without changing your workplace or your contract. To understand it, you need to know another concept: the professional group (grupo profesional).

The professional group is the way your collective agreement classifies jobs. Each group brings together positions with a similar level of responsibility, training and tasks, and the agreement describes which duties belong to each one. In Nelson’s case, his collective agreement places the administrative assistant position in one group and the traffic manager position in a higher one, with a higher salary.

The law distinguishes two situations:

• Changes within your own professional group. The employer can assign you different tasks more freely, always respecting the qualifications the position requires and your dignity.
• Duties of another group, higher or lower. Here the law is stricter. It is only possible if there are technical or organizational reasons that justify it, and only for the time strictly necessary to deal with them. In addition, the employer must inform the workers’ representatives of its decision and its reasons.

Look at Nelson’s case under these rules. The retirement of the traffic manager may be an organizational reason to ask him to cover the position. But that assignment should only last for the time strictly necessary, and eight months have passed without the vacancy being advertised. And nobody has informed the works council. “It’s temporary” is not an answer that fits easily with what the law requires.

Being Paid for What You Do: the Right to the Salary Difference

This is the most important part for Nelson, and probably for you. Article 39.3 of the Workers’ Statute puts it this way:

“The worker shall be entitled to the pay corresponding to the duties actually performed, except in cases of assignment of lower duties, in which the original pay shall be maintained. Supervening incapacity or failure to adapt may not be invoked as grounds for objective dismissal in cases where duties other than the usual ones are performed as a result of functional mobility.”

In plain words: if you perform duties of a higher group, you must be paid that group’s salary while you perform them. It does not matter what your position is called in your contract or that the employer says it is provisional.

And one key detail: this salary difference is owed from the first day you perform the higher duties. You do not have to wait six months or eight. The time periods we will discuss later are for claiming a promotion, not for being paid the difference.

In Nelson’s example, that means about €400 for each month he has worked as traffic manager. Multiplied by eight months, that is about €3,200 (always with illustrative figures). Later you will see that each monthly payment has its own deadline for claiming it.

If you are also concerned about being paid the same as others for work of equal value, you may be interested in this article on what changes with pay transparency in Spain in 2026.

Six Months in One Year or Eight in Two: When You Can Claim a Promotion

Being paid the difference is good, but Nelson wants something more: to have the position recognized. The law also gives him a way to do that. Article 39.2 of the Workers’ Statute says:

“Where higher duties than those of the professional group are assigned for a period of more than six months in one year or eight months in two years, the worker may claim a promotion, if this is not prevented by the provisions of the collective agreement, or in any case the filling of the vacancy corresponding to the duties performed by the worker in accordance with the rules on promotions applicable in the company, without prejudice to claiming the corresponding salary difference. These actions may be combined. Against the employer’s refusal, and following a report from the works council or, where applicable, the staff delegates, the worker may bring a claim before the labor courts.”

Let’s break it down:

• The time periods. You can claim if you have performed higher duties for more than six months within a one-year period, or for more than eight months within a two-year period.
• Promotion, if the collective agreement does not prevent it. You can ask to be promoted to the group whose duties you perform, unless your collective agreement provides otherwise.
• Filling the vacancy, in any case. If a direct promotion is not possible, you can claim that the vacancy be filled in accordance with the promotion rules that apply in your company. The collective agreement may also set different periods for filling vacancies, so it is worth checking.
• All at once. These claims are compatible with the salary difference and can be filed together.

Important: promotion is not automatic. It is not enough for six months to pass for your category to change by itself. You have to claim it, and the outcome depends on what your collective agreement says and on your company’s promotion rules.

In Nelson’s case, he has spent eight months in a row as traffic manager, so he exceeds six months in one year. He can ask for a promotion or, if his collective agreement or the promotion rules require it, for the vacancy to be filled according to those rules. And at the same time he can claim the €400 difference for each month.

The Works Council Report and the Court Claim

If the employer refuses to recognize the promotion or to fill the vacancy, you can go to the labor court. But the law sets a prior step: you need a report from the works council (comité de empresa) or, if there is no works council, from the staff delegates (delegados de personal), if your company has them.

The works council and the staff delegates are the workers’ representatives in the company. The law requires their report before claiming a promotion or the vacancy in court.

Nelson’s company has a works council. Remember that the employer did not even inform it of the assignment, as the law requires. That is why Nelson’s first step is to go to the works council, explain his situation with evidence and ask for the report. With it, he can claim the promotion or the vacancy before the labor courts, together with the salary difference.

Every case has its own particularities (which representatives the company has, what the collective agreement says, how the assignment was made), so before taking this step it is a good idea to review your specific situation with Fernanda Vargas, employment lawyer in Madrid.

The Opposite Case: If You Are Assigned Lower Duties

Now imagine the opposite. One day the employer asks you to leave your tasks and do work from a group lower than yours. Can they cut your salary because of it?

No. The same Article 39.3 we saw earlier makes it clear: if you are assigned lower duties, you keep your original pay. You earn the same as you did before the change.

In addition, the same rules of Article 39.2 apply here: assigning duties of a lower group is only possible for technical or organizational reasons, for the time strictly necessary and with notice to the workers’ representatives.

There is one more protection: the employer cannot use that change to dismiss you. If it has you perform duties other than your usual ones through functional mobility, it cannot later claim that you are incapable of doing them or that you have failed to adapt as grounds for objective dismissal.

There are similar situations that go further: for example, when the employer stops giving you work or gradually takes your tasks away. If that is your case, read this article on what to do if you are stripped of your duties and given no work.

How to Prove the Duties You Perform

This is where these claims are won or lost. The law gives you the right, but you must be able to show that you really perform duties of another group, and since when. These are the most useful pieces of evidence:

• Documents you sign while performing those duties. In Nelson’s case, the incident reports.
• Emails with clients or suppliers in which you act as the person in charge.
• Instructions from the employer assigning you those tasks: an email, a message, a memo.
• Organization charts in which you appear in that position or as the contact for that area.
• The absence of the person who held the position: their retirement, their sick leave or their departure from the company, and the fact that the vacancy is still unfilled.
• Witnesses: coworkers, clients or suppliers who can confirm what you do.
• The description of duties in your collective agreement, to compare what your group does with what you do.

A practical tip: start keeping evidence from the first day. It is much easier to gather it as you go than to reconstruct, eight months later, what you did and when.

The Deadline to Claim the Salary Difference

Salary differences cannot be claimed without a time limit. Under Article 59.2 of the Workers’ Statute, they become time-barred one year from the day they could have been claimed.

In practice, this means that each month has its own one-year deadline, which starts from the date that payslip should have been paid. If you wait too long, the oldest monthly payments are lost.

For Nelson, who has been doing it for eight months, all the differences are still within the deadline. But if he lets time pass, the first month can no longer be claimed once a year has passed since its payment date, then the second, and so on. That is why it is not in his interest to wait for the “temporary” situation to sort itself out.

Checklist and Table: What You Are Entitled to in Each Case

Before making a claim, go through this checklist:

• I have found my collective agreement and the description of duties for my group and for the higher group.
• I know the date since which I have been performing the higher duties.
• I have calculated, using the pay tables in the agreement, the difference between my salary and that of the higher group.
• I keep documents I sign, emails with clients or suppliers and the instructions assigning me those tasks.
• I have organization charts or other documents in which I appear in that position.
• I know who can act as a witness.
• I have checked whether there is a works council or staff delegates to ask for their report.
• I have checked that no monthly payment is about to reach one year.

And this table sums up what you are entitled to in each case:

Situation	Salary	Other rights
Higher duties, any length of time	That of the duties you actually perform, from the first day	Claim the salary difference (each month, within the year after its payment date)
Higher duties for more than 6 months in one year or 8 in two	That of the duties you actually perform	Claim a promotion if the collective agreement does not prevent it or, in any case, the filling of the vacancy, together with the salary difference; before going to court, a report from the works council or the staff delegates
Lower duties	You keep your original salary	You cannot be dismissed for supervening incapacity or failure to adapt to those duties other than your usual ones
Any assignment of duties of another group	Depending on the case, as above	Only for technical or organizational reasons, for the time strictly necessary and with notice to the workers’ representatives

So how does Nelson’s story end? He is entitled to be paid according to the duties he actually performs, so he can claim the difference between his salary and that of a traffic manager for all the months in which he has performed them (in the example, about €400 a month), bearing in mind that each monthly payment must be claimed within the year after its payment date. As he has spent more than six months in one year performing those duties, he can also claim a promotion or, if his collective agreement or the promotion rules require it, that the vacancy be filled according to those rules, and file both claims together. Before going to court, he needs the works council’s report. In the meantime, he gathers the incident reports he signs, the emails with clients and any instruction assigning him those tasks.

If you are in a similar situation, Fernanda Vargas helps you with your employment law claim: she reviews your collective agreement, calculates what you are owed and prepares the claim with you.

Frequently Asked Questions

If you want to know how much you are owed or how to claim a promotion, write to Fernanda Vargas on WhatsApp or book an appointment on Calendly.