Void dismissal (despido nulo): compulsory reinstatement, lost pay and non-pecuniary damages
A void dismissal cannot be bought off with a payment: it requires the employer to take the employee back and to pay everything they have lost. This is how the law protects certain situations — pregnancy, family leave, retaliation, breach of fundamental rights — and in several of them the dismissal is void automatically, without the employer’s intention having to be proved.
What a void dismissal is
A dismissal is void (nulo) where its motive is one of the grounds of discrimination prohibited by the Constitution or by statute, or where it is carried out in breach of the employee’s fundamental rights and public freedoms (art. 55.5 of the Estatuto de los Trabajadores, the Workers’ Statute). And it is also void, by express provision, in a list of specific situations the law protects regardless of what the employer had in mind.
The difference from an unfair dismissal is one of kind, not of degree. Where a dismissal is unfair the employer may choose to pay and treat the contract as at an end. Where it is void there is no such option: the employment relationship has not come to an end at all.
Automatic nullity: the situations in the small print
Art. 55.5 ET also declares a dismissal void in these cases:
- During periods of suspension for birth, adoption, fostering with a view to adoption, foster care, risk during pregnancy or breastfeeding, while taking parental leave, or for illness caused by pregnancy, childbirth or breastfeeding; and also where the notice period ends within those periods (point a).
- Dismissal of pregnant employees, from the date the pregnancy began until that suspension starts; of those who have applied for or are taking the family leave of art. 37, the working-time adjustments of art. 34.8 or the care leave of art. 46.3; and of employees who are victims of gender-based or sexual violence, for exercising their right to judicial protection or the protective rights the law confers (point b).
- Dismissal of those who have returned to work after suspension for birth, adoption, guardianship or foster care, provided no more than twelve months have passed since that event (point c).
Why this matters so much. In these situations there is no need to show that the employer dismissed because of the pregnancy or because of the reduction in hours. The objective situation is enough. The law saves the employer only where the dismissal is held fair on grounds unconnected with the pregnancy or with the exercise of those rights; and where the dismissal is on objective grounds, the employer is required to establish sufficiently that the ground specifically required the termination of that person’s contract (art. 53.4 ET). It is a very demanding burden, and it is what decides most of these cases.
The position of a pregnant employee deserves emphasis: the protection runs from the beginning of the pregnancy, even where the employer did not know of it. So does that of an employee who has asked for a working-time adjustment under art. 34.8 ET, expressly added to the list, which in recent years has become one of the most frequent.
Breach of fundamental rights and retaliation
Outside that list, a dismissal is void where it answers a discriminatory motive or injures a fundamental right. The cases we see most:
- Protection against retaliation (garantía de indemnidad): dismissing someone who has made a claim, reported the employer to the Labour Inspectorate, sued, or given evidence as a witness. Retaliation for exercising a right injures the right of access to justice.
- Freedom of association: union membership, union activity, taking part in a strike.
- Discrimination on grounds of sex, origin, age, state of health or any other prohibited ground.
- Privacy and data protection: evidence obtained through cameras, geolocation or searches of a computer without meeting the requirements of notice and proportionality. If the evidence cannot be used, the dismissal usually falls.
- Harassment at work ending in termination.
Effects: reinstatement, lost pay and compensation for the harm
A void dismissal has the effect of the immediate reinstatement of the employee, with payment of the wages lost (art. 55.6 ET). The employer has no choice, and reinstatement cannot be replaced by money.
Where the dismissal is held void for breach of a fundamental right there is a third effect that often goes unclaimed: the court must rule on the compensation due for the discrimination or the breach, having regard both to the non-pecuniary harm bound up with the breach and to any further loss. And it may fix the amount on a broad assessment where proving the exact figure would be too difficult or costly, both to compensate the victim and to help prevent such harm. That compensation is additional to whatever is due for the termination of the contract (art. 183 of the Ley Reguladora de la Jurisdicción Social, LRJS, the Employment Procedure Act).
How it is proved
In cases of automatic nullity, by establishing the situation — the pregnancy, the application for the adjustment, the date of return — and the date of the dismissal. In the rest, the employee has to put forward indicative evidence that the dismissal answered an unlawful motive; once that is done, it falls to the employer to prove that its decision rested on a real ground, unconnected with that motive and proportionate.
What works as indicative evidence, in practice: closeness in time between the complaint or the request and the dismissal; an abrupt change in treatment after a particular event; messages and emails; the absence of any earlier disciplinary criticism over a long career; or the fact that the only person dismissed is the one who exercised the right. It is worth keeping everything and putting it in date order from day one.
How we handle it, step by step
Fixing the date and the right exercised
The chronology comes first: what was requested or reported, when, and when the dismissal arrived. That timeline is frequently the principal piece of indicative evidence.
Deciding what classification to ask for
Nullity as the principal claim and unfairness as the alternative, properly ordered. We explain beforehand what prospects each has and what each outcome means.
Papeleta de conciliación within twenty días hábiles
The same deadline as in any dismissal — twenty working days, not calendar days, and it extinguishes the right outright. Nullity buys no extra time.
Claim with protection of fundamental rights
With the compensation under art. 183 LRJS quantified and reasoned, not a figure plucked out of the air: it is the part most often pleaded badly and the part worth most.
Enforcing the reinstatement
Once nullity is declared, we check that the reinstatement is real and on the same terms, and that the lost wages are paid. If the employer does not take the employee back, it is enforced.
Frequently asked questions
I was pregnant and the company says it did not know.
The protection operates from the date the pregnancy began and does not require the employer to have known: it is a case of automatic nullity (art. 55.5 b) ET). The employer is saved only if it establishes that the dismissal was fair on grounds unconnected with the pregnancy, and where it is a dismissal on objective grounds it must also prove that the ground specifically required that contract to be terminated (art. 53.4 ET).
I asked for reduced hours and two weeks later I was dismissed.
That falls within the list in art. 55.5 b) ET, which expressly includes those who have applied for or are taking the leave under art. 37 and the working-time adjustments under art. 34.8. The closeness in time also strengthens the case for a breach of the protection against retaliation. Keep the application and the employer’s reply.
Can I ask for compensation instead of going back to the company?
The legal effect of nullity is reinstatement with payment of lost wages, and it cannot be replaced by compensation (art. 55.6 ET). That said, in practice many of these cases settle at conciliation, and the position of someone with a well-built void dismissal at that moment is very different from that of someone arguing only about unfairness.
I was dismissed after reporting the company to the Labour Inspectorate.
That is the classic case of retaliation and of breach of the protection against it. With sufficient indicative evidence — the report, its date and the date of the dismissal, and the absence of any earlier criticism — the burden shifts to the employer, which will have to prove that it dismissed for a real reason unconnected with that report.
How much is claimed for non-pecuniary harm?
There is no tariff. The court fixes it on a broad assessment where proving the exact figure is difficult or costly, having regard to the non-pecuniary harm and to any further loss, and with a preventive purpose as well (art. 183 LRJS). In practice it is quantified by reference to the penalties laid down for equivalent infringements and to the circumstances of the case, and it is worth setting out the reasoning in detail in the claim.
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, before 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 conciliation before the SMAC.
Tell us about your case
If you have been dismissed while on maternity or paternity leave, while pregnant, after asking for reduced hours, or just after raising something with your employer, tell us about it with the dates. The deadline is twenty días hábiles — working days. We study every case before taking it on, and we tell you frankly whether nullity can be argued.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)