Unfair dismissal in Spain: when a dismissal is unfair and what compensation is due
A dismissal is unfair where the employer cannot establish what it alleges, or where the letter does not meet the form the law requires. We explain what makes a dismissal unfair, how the compensation is really calculated where service goes back before 2012, and why the twenty días hábiles allow no excuses.
When a dismissal is unfair
The statute says it in two lines, and they are worth reading slowly. A dismissal is fair (procedente) where the breach the employer alleges in its letter is established. It is unfair (improcedente) where it is not, or where in its form it does not meet the requirements (art. 55.4 of the Estatuto de los Trabajadores, the Workers’ Statute). In other words: there are two doors, substance and form, and the employer only has to fail at one of them.
In practice, these are the grounds that most often lead to a finding of unfairness:
- The letter does not set out the facts or the dates, and the court cannot tell what the employee was supposed to be answering.
- The employer cannot prove what it wrote: no witnesses, no documents, or evidence obtained in a way that makes it unusable.
- The conduct is not serious enough to justify dismissal, and a lesser sanction was what was called for.
- The facts are out of time, or the employer has already sanctioned the employee for the same thing.
- In a dismissal on objective grounds, the economic, technical, organisational or production-related ground is not established, or the requirements of art. 53.1 ET were not met.
The dismissal letter: what almost nobody checks
A dismissal must be notified in writing, setting out the facts relied on and the date it takes effect; the applicable collective agreement may add further formal requirements. If the employee is an elected workers’ representative or a union representative, a contested internal procedure has to be opened; and if they belong to a union and the employer knows it, the union representatives of that section must first be heard (art. 55.1 ET).
The letter fixes the field of play. At the hearing the employer cannot rely on facts other than those it put in the letter. That is why a generic letter — «for a drop in performance», «for loss of trust», and no more — is a weak letter, and why it is best not to sign anything or argue about the contents in the heat of the moment: whatever needs saying is said afterwards, in writing and in the proper place.
The law gives the employer a limited second chance: where it dismissed without observing the required form, it may carry out a fresh dismissal putting right what was omitted, within the following twenty days, making available to the employee the pay for the intervening days and keeping them registered with social security (art. 55.2 ET). It is worth knowing, because it shapes the strategy of the first few weeks.
The compensation, properly calculated
Where a dismissal is declared unfair, the compensation is thirty-three days’ pay for each year of service, with periods of less than a year apportioned by month, up to a maximum of twenty-four months’ pay (art. 56.1 ET).
But where the contract predates 12 February 2012, the calculation is split into two stretches: forty-five days per year up to that date and thirty-three from then on, with a general cap of 720 days. Here is the detail that is often missed: where the amount accrued up to February 2012 already exceeds those 720 days, that amount operates as the cap, even though forty-two months’ pay is not reached. The Tribunal Supremo (the Supreme Court) settled it that way in its judgment of 18 February 2016 (ECLI:ES:TS:2016:893), in the case of someone who had been working since 1993.
And there is a second front that changes the figure as much as the formula, or more: the pay taken as the basis. It has to be the actual daily pay with the extra payments apportioned, and it includes the elements of remuneration that employers sometimes leave out — variable pay, commission, travel allowance where it counts as pay, benefits in kind, a company car. Going through the payslips for the preceding twelve months is, almost always, what raises the compensation most.
Reinstatement or compensation: who chooses
The choice belongs to the employer, which must exercise it within five days of being served with the judgment; if it does not, it is taken to have chosen reinstatement (arts. 56.1 and 56.3 ET). If it chooses to reinstate, the employee is entitled to salarios de tramitación — the pay lost between the dismissal and service of the judgment — less anything earned in other employment, if the employer proves it (art. 56.2 ET).
The rule is reversed where the person dismissed is an elected workers’ representative or a union representative: the choice is theirs, reinstatement is compulsory if they choose it, and they are entitled to salarios de tramitación either way (art. 56.4 ET).
Dismissal on objective grounds, and its traps
Where the employer relies on economic, technical, organisational or production-related grounds it must satisfy three requirements at once: written notice stating the ground, simultaneous availability of compensation of twenty days per year up to a maximum of twelve months’ pay, and fifteen days’ notice (art. 53.1 ET). During the notice period the employee is entitled to six hours a week of paid leave to look for work (art. 53.2).
Two qualifications worth knowing before relaxing. The statute expressly warns that neither the absence of notice nor an excusable error in calculating the compensation of itself makes the dismissal unfair (art. 53.4 ET, final paragraph): they give a right to that pay or to the difference, but they do not bring the dismissal down. What does bring it down is a failure to establish the ground. And accepting the compensation offered does not prevent a challenge: it can be taken without that meaning acceptance, though it is better to say so in writing.
The deadline: twenty working days
An employee may challenge a dismissal within the twenty días hábiles following the day it took place. It is a limitation period that extinguishes the right for all purposes, and Saturdays, Sundays and public holidays at the seat of the court are not counted (art. 103.1 of the Ley Reguladora de la Jurisdicción Social, LRJS, the Employment Procedure Act).
If you are not from Spain, read this twice. Días hábiles are working days, not calendar days: in employment matters Saturdays, Sundays and public holidays do not count. And it is a caducidad period — one that extinguishes the right outright — not a limitation period: it is not interrupted by a letter, an email or a conversation with the employer. The only thing that suspends it is filing the papeleta de conciliación, the formal request for conciliation, which is in any event a compulsory step before proceedings can be brought (art. 63 LRJS). That is why a dismissal has to be looked at in the first few days and not «once the upset has passed».
How we handle it, step by step
Letter, contract, collective agreement and payslips
We read the letter against the applicable collective agreement and recalculate length of service and the pay figure from the payslips for the preceding twelve months. That is almost always where the differences appear.
Classification and figure
We tell you in writing whether the dismissal can be argued as unfair or as void, what compensation each scenario produces and what risk each carries. No inflated figures.
Papeleta de conciliación filed in time
Filed within the twenty días hábiles, which is what suspends the deadline. We prepare the conciliation hearing with a position and a floor decided beforehand.
Claim and evidence
Proceedings before the employment tribunal (juzgado de lo social), with the documentary and witness evidence in order and a challenge to whatever the employer produces.
Hearing, judgment and enforcement
The hearing, and then what tends to be forgotten: watching the employer’s choice, the salarios de tramitación and actual payment, including enforcement if it does not pay.
Who handles these cases at the firm
Employment matters are handled at the firm by a lawyer who works in this field, admitted to the Bar in 1993. We take on individual dismissals and employment matters of some complexity: several companies and corporate groups, disputed length of service, unlawful supply of labour, substantial changes to working conditions, and terminations at the employee’s initiative. In case results you can see a decision in this field, with its figure and its context.
Frequently asked questions
I have been dismissed and they want me to sign «no conforme». What am I signing?
Signing for receipt of the letter is not accepting the dismissal, and adding «no conforme» (not in agreement) records that you do not accept its contents. What you should not sign without advice is a finiquito — the final settlement on leaving — containing a full and final settlement clause that waives your right to bring claims. If you have already signed one, that is not necessarily the end of it either: it depends exactly what it says.
Can I take the compensation offered and still bring a claim?
In a dismissal on objective grounds, yes: taking the compensation made available does not imply acceptance of the termination, and the statute itself provides that if the dismissal is later held unfair and there is reinstatement, the employee repays it or it is set off against the compensation (art. 53.5 b) ET). It is worth recording in writing that it is taken on account and without giving up the right to challenge.
My employer gave me no notice in a dismissal on objective grounds. Is it unfair?
Not on its own. The statute says expressly that neither the absence of notice nor an excusable error in calculating the compensation makes the dismissal unfair; they give a right to the pay for that period or to the difference (art. 53.4 ET). What decides the case is whether the ground relied on is established.
I have been with the company since the 1990s. How is mine calculated?
In two stretches: forty-five days per year up to 12 February 2012 and thirty-three from then on, with a cap of 720 days. And if the amount accrued up to 2012 already exceeded that cap, it is that amount which operates as the limit, subject to a maximum of forty-two months’ pay (Tribunal Supremo, judgment of 18 February 2016, ECLI:ES:TS:2016:893). With service of that length, the difference between one calculation and the other can run to tens of thousands of euros.
Twenty-five days have gone by. Am I still in time?
They are twenty working days (días hábiles), not counting Saturdays, Sundays or court holidays, so twenty-five calendar days may still be within the period. It has to be counted with the calendar in front of you, and the papeleta de conciliación filed that same day if there is any margin left. Do not leave it until tomorrow.
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. Dismissal cases from this area are heard by the employment tribunals of Madrid and, on appeal (suplicación), by the Employment Division of the Tribunal Superior de Justicia de Madrid (the regional high court). This page forms part of our dismissal and employment law practice; see also void dismissal and conciliation before the SMAC.
Tell us about your case
If you have been dismissed, bring the letter, the contract and your recent payslips and we will tell you how your dismissal is likely to be classified and what figure is realistic. The deadline is twenty días hábiles — working days — so it is best looked at early. We study every case before taking it on, and we tell you frankly whether it has any prospect of success.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)