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PortugalRecruitment and Selection
How to draft a preliminary employment contract from the HR department
The pre-employment contract should be managed in advance. In addition, compliance clauses must be considered. Read us for more details!
Isabel García
HR Consultant
17 of March, 2025
One of the main tasks of HR is talent hunting. However, not always are we going to onboard immediately. To not lose them, we can sign a pre-contract. But first, you must be sure about how to create a work pre-contract.
At the end, we can consider this as another phase in the process of staff selection. And as such, it should be managed correctly.
What is a work pre-contract
The work pre-contract is a legal commitment to future hiring. The legal document in which the agreement between the company and the worker for the provision of service is reflected.
However, it is not a typical type of work contract. Later, we will have to formalize the work contract.
Both parties must sign the document to guarantee that the agreements reached in the negotiation are fulfilled. For professionals, this guarantees a future contract in the company.
For employers, the pre-contract ensures that the worker will join the team at the agreed time.
A work pre-contract does not imply the perception of a salary, nor does it add seniority in the company. However, it is a document with full legal validity. But, it must include certain specific data.
If you want to know how to do it, it will include this information:
- Job or position offered
- Start date of the working relationship
- Contract duration and remuneration
When this information is omitted, we cannot talk about a previous contract. The document will only be a job offer, without any legal validity. Therefore, we will pay special attention to the drafting of the document. This way, we will avoid problems in the future.
How to make a work pre-contract
Firstly, the work pre-contract will include the essential data, starting with the worker’s full name.
You can also include their ID or passport. As we have said, the position to be filled will be included. The ideal is to indicate the exact name of the position.
Another key element is the start date and the type of contract. Will we offer a temporary or indefinite contract? It is also interesting to indicate the working hours, including overtime, and the salary.
Finally, we can include the benefits to which the contracted person will be entitled.
Once the document is drafted, we will fulfill the formalities of the work pre-contract. Like a contract, one copy is drafted for the worker and another for the company.
After signing, the organization must file it correctly. The agreed terms will be reflected in the future labor contract.
At this point, you will have realized that this document should always be written down. In no case will we consider the previous conversations a pre-contract.
They are not legally binding. Neither are the (oral) promises of hiring. Without paper and signature, this document is not valid for talent management.
When is a work pre-contract necessary?
Perhaps work pre-contracts are not as common in Spain as in other countries. One of the most common scenarios is to hire a foreigner. Especially, when it comes to non-EU citizens.
This document will be decisive when it comes to obtaining the work permit in Spain.
Another case where pre-contracts are commonly signed is company changes. The person changing employer must notify their resignation in advance.
The work pre-contract is a guarantee that the future employer will not back down. It has secured the position in another company.
As we pointed out at the beginning, this is a guarantee for the worker. Therefore, before taking a step as the ones described earlier, they need insurance.
We can also find us with work pre-contracts for students about to graduate. For example, when the employer decides to keep an intern on the payroll after doing the internships. This document is the way to guarantee the continuity of the working relationship.
What happens if the conditions are not met?
Despite everything, we can find scenarios where the work pre-contract is not fulfilled. At first, the employer cannot back down.
If they do, it can be considered a dismissal and, in case of not giving a valid reason, they will have to compensate the worker. The non-compliance must be justified.
Just like the employer can back down, the worker can also do it. For example, because their current company has convinced them with a counteroffer.
In this case, they are not respecting the obligations or responsibilities established in the work pre-contract. They can be condemned to compensate what was going to be their employer.
Clauses to break it
When drafting a work pre-contract, we can always include clauses that allow us to back down. In other words, include the conditions that will be met to formalize the work contract.
These conditions offer us a legal framework to break any work pre-contract.
For example, it can be subject to certain conditions. Returning to the examples seen before, we can break it if the employee does not get the residence permit. Or if they do not finish their studies within the agreed period. It is understood that they have not fulfilled their part.
Something similar happens when the incorporation is not carried out on the agreed date. In any case, HR must make sure to make a real offer.
They will have to assume what was agreed in the writing, offering a contract under the agreed conditions. If not, we are breaching the pact.
Beyond making the pre-contract, HR must file and manage it. HR software such as Sesame HR that includes a document manager can be of great help.
Especially, if you also use it to start the onboarding from the signing of the document until the day of incorporation.
Want to know more about HR processes? Find out more on the Sesame HR blog.
Need help?
I'm Isabel, HR consultant at Sesame HR. Book a meeting with my team to help you.