Papeleta de conciliación and the hearing before the SMAC
Before suing in the employment courts you have to attempt conciliation. It is not a minor formality: the papeleta suspends the dismissal deadline, fixes what can later be asked for in the claim, and opens the one moment at which both sides sit down without a judge in front of them. We explain how it works and how to prepare a hearing that is worth something.
What prior conciliation is for
If you are used to employment law in England or Ireland, start here. In Spain you cannot go straight to the employment tribunal. An attempt at conciliation before an administrative body is a compulsory step, and a claim filed without it is not admitted. It is the stage most often missed by people who do not know the system, and in a dismissal it is also what stops the clock. The document that starts it is the papeleta de conciliación, the formal request for conciliation.
An attempt at conciliation or, where applicable, mediation before the relevant administrative service, or before whichever body has taken on those functions under the inter-professional agreements or collective agreements of art. 83 of the Estatuto de los Trabajadores (the Workers’ Statute), is a precondition for the proceedings to go ahead (art. 63 of the Ley Reguladora de la Jurisdicción Social, LRJS, the Employment Procedure Act). In the Comunidad de Madrid that administrative service is the Servicio de Mediación, Arbitraje y Conciliación — the SMAC, the mediation, arbitration and conciliation service — which comes under the regional directorate of employment; in certain sectors the collective agreement may refer the matter to a dispute resolution body of its own.
Without that attempt, the claim is not admitted. But treating it as a piece of paper to be filed is a mistake: in a considerable proportion of cases the dispute ends there, with a settlement that avoids a year of waiting and the risk of a hearing.
Which cases need it and which do not
The Act exempts a specific list of proceedings from prior conciliation, among them those concerning social security, holidays, geographical mobility, substantial changes to working conditions, suspension of the contract and reduction of working hours on economic, technical, organisational, production-related or force majeure grounds, order for payment proceedings, proceedings on rights to reconcile personal, family and working life under art. 139, proceedings for the protection of fundamental rights and public freedoms, proceedings on remote working under art. 138 bis, electoral matters and employment claims for protection against gender-based violence; as well as those requiring the administrative channel to be exhausted first (art. 64.1 LRJS).
A qualification with consequences. Dismissal is not on that list: it always needs a papeleta. And even where proceedings are exempt, if both parties attend conciliation or mediation voluntarily and in good time, the caducidad periods are suspended and limitation periods interrupted just the same (art. 64.3 LRJS). Sometimes it is worth doing precisely for that effect.
The effect on the deadlines: what really matters
Filing the request for conciliation or mediation interrupts limitation periods and suspends caducidad periods from the date of filing. Time starts again, or resumes, respectively, on the day after the attempt at conciliation or mediation, or once fifteen días hábiles have passed from filing without it having taken place (art. 65.1 LRJS). And in any event, once thirty días hábiles have passed without the hearing taking place, without mediation having begun or without a settlement, the procedure is treated as concluded and the requirement as satisfied (art. 65.2 LRJS).
The most expensive mistake of this stage. Días hábiles are working days, not calendar days: Saturdays, Sundays and public holidays are not counted. Applied to a dismissal: the twenty working days to challenge it stop on the day the papeleta is filed, but start running again after fifteen working days at the latest, even if the SMAC has not yet listed the hearing. Anyone who assumes the deadline is «frozen» until they are summoned can find the claim has been extinguished. It is, by a distance, the costliest error at this stage.
What the papeleta must say
- Full identification of the employee and of the company or companies the claim is against, with their actual address. A wrong address delays the summons and eats into the deadline.
- Contract details: length of service, job category, working hours, pay and the applicable collective agreement.
- The facts, with dates, and the effective date of the dismissal or of the act being challenged.
- What is being claimed, clearly. The later claim must be consistent with the papeleta: substantially different heads of claim cannot be introduced afterwards, although they may be refined and quantified.
- Signature and date — and keep the stamp or the filing receipt: that document is what proves the deadline was suspended.
Where the papeleta has been directed at one company and it later becomes necessary to direct or extend it against a different one, the Act exempts that situation from the prior requirement (art. 64.2 b) LRJS), which gives some room in cases of corporate groups, contracting chains and unclear successions.
The hearing: what happens on the day
The hearing is short and has three possible outcomes: con avenencia (settled), sin avenencia (no settlement) or intentado sin efecto (the employer does not attend despite having been summoned). All three satisfy the requirement and allow a claim to be filed; what differs is what you leave with.
What should be decided before going in:
- A calculated figure, not an aspiration: compensation on the classification being argued for, outstanding pay, holiday not taken, variable pay.
- A floor, below which nothing is signed, agreed with the client before the hearing and not in the corridor.
- What is given up and what is not. The effective date, the position on unemployment benefit, the handing over of the employer’s certificate or a reference sometimes weigh as much as the amount.
- The tax consequences. Dismissal compensation is exempt from income tax within the statutory limits, but anything agreed under other headings is taxable. A badly drafted settlement can cost money later.
The settlement and what it is worth
What is agreed at administrative conciliation is directly enforceable: if the employer does not pay what was agreed, there is no need to litigate the merits again — it is enforced straight away before the employment tribunal. Which is why the record of the hearing has to state precisely how much, when, how and under what heading payment is made, and what happens if it is not.
It is also worth measuring the scope of the waiver being signed. A broad «nothing further to claim» formula can close off claims that had not yet been assessed — pay differentials, overtime, an incapacity application in progress — and that is reviewed before signing, not after.
How we handle it, step by step
Calculate before filing
Length of service, the pay figure and every claimable heading, with the payslips and the collective agreement in front of us. The papeleta is drafted from a figure, not the other way round.
Papeleta filed in time and properly directed
Against every company that might be liable, with correct addresses and drafted so as not to limit the later claim. And with the receipt kept.
Keeping the calendar
We count the fifteen and thirty días hábiles of art. 65 LRJS so that the deadline does not start running again before the claim is ready.
A prepared hearing
With the figure, the floor and the concessions decided in advance, and with the paperwork that makes the position credible. We attend with the client or on their behalf.
Settlement drafted, or claim filed at once
If there is a settlement, it is drafted with headings, dates and the consequences of non-payment. If there is not, the claim goes in without losing a day.
Frequently asked questions
Do I need a lawyer for the papeleta and for the SMAC?
It is not compulsory. But the papeleta shapes the later claim, the deadline resumes simply with the passage of time, and the hearing frequently decides the whole matter. Anyone who turns up without having calculated their compensation is negotiating blind against someone who has.
I filed the papeleta and have not been summoned yet. Is my deadline still stopped?
Not indefinitely. Time resumes on the day after the attempt at conciliation or, if the hearing has not taken place, once fifteen días hábiles have passed since filing (art. 65.1 LRJS). It is a very common mistake and in dismissal cases its consequences cannot be undone. You have to watch the calendar and file the claim even if no summons has arrived.
The employer did not turn up. Does that harm me?
No. The hearing is recorded as «intentado sin efecto», the requirement is satisfied and a claim can be filed. Unjustified non-attendance by a party that has been summoned may also be taken into account later and, where appropriate, reflected in the order for costs.
Can I claim more in the proceedings than I put in the papeleta?
The claim must be consistent with the papeleta: heads of claim substantially different from those raised there cannot be introduced, although they may be particularised and quantified. Which is why the papeleta is drafted once the case has been studied, not in a hurry «to stop the clock».
They are offering me a settlement at the hearing. Do I sign?
It depends on the figure, on the effective date agreed, on how it leaves your unemployment position, and on what waiver the record contains. What you should not do is decide it for the first time at that moment: the answer is prepared beforehand, with a floor fixed and knowing what is gained and what is risked by going to a hearing.
Where we work
Our office is in Villanueva de la Cañada, with cases in Brunete, Villanueva del Pardillo, Valdemorillo, Quijorna, Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón and the rest of western Madrid. Papeletas are filed with the SMAC of the Comunidad de Madrid and proceedings are heard by the employment tribunals of Madrid. Employment matters are handled at the firm by a lawyer who works in this field, admitted to the Bar in 1993. This page forms part of our dismissal and employment law practice; see also unfair dismissal and void dismissal.
Tell us about your case
If you have a papeleta to file or have been summoned to a hearing, tell us what has happened and bring the letter, the contract and your payslips. Arriving with the figure already calculated changes the outcome of that morning. We study every case before taking it on, and we tell you frankly what is realistic.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)