Employee Dismissal: Legal Consequences and Procedures

Posted on Dec 19, 2024 in Law & Jurisprudence

Dismissal: Legal Consequences and Procedures in Spain

Determining the Procedure

In the event of a dismissal, the judge shall determine the procedure as appropriate, inappropriate, or null (108.1 LPL).

Appropriate Dismissal

An appropriate dismissal occurs when the employer is credited with alleged non-compliance in the written communication (55.4 ET 108.1 LPL). Legal requirements regarding the gravity and culpability of the breach of contract by the worker are considered, with guilt not being supported by an intentional lack of diligence in obligations. The rating of the appropriateness of dismissal requires value judgments by the judiciary regarding the graduation of the fault. The decisive principle is the jurisprudential criteria of adequacy and proportionality between the person and punishment. The effect is the validated termination of the employment contract, without compensation or salary (55.7 ET). The employment contract is immediately terminated, and compensation is excluded (the employer would pay the amounts for work until the time of discharge).

Inappropriate Dismissal

According to 108.1 LPL, there are two cases of inappropriate dismissal: when there is a common ground for alleged infringement by the employer in writing, and if the formal requirements concerning art. 55 ET have not been fulfilled.

Formal Requirements and Failure

Article 55.1 ET requires that dismissal be carried out in compliance with the following requirements:

  • Written notice to the employee, stating the reasons that motivate the dismissal (105.2 LPL to justify dismissal, only admissible grounds filed in the lawsuit are those in the written communication, which must be clear and concrete).
  • The date on which the dismissal shall take effect (intended to determine the starting point of the limitation period for claiming the action).

The notification shall be accomplished using appropriate means to ensure the worker’s knowledge. Delivery methods include by hand or by certified mail. It can be held at the workplace or the worker’s residence, which coincides with the personal data given to the employer. Collective agreements may establish other procedural requirements (55.1 ET).

Consequences of Non-Compliance with Formal Requirements

If the employer dismisses in breach of formal requirements, they can make a new dismissal within 20 days from the first dismissal, fulfilling the omitted formal requirements. They shall pay all wages earned in the intermediate period and register the employee with Social Security (55.2 ET).

Regarding the computation of the 20 calendar days (55.2 ET), the court considers:

  1. The new dismissal may be a correction of the previous one; the expiration period starts counting from the date of receipt of the letter.
  2. If the second letter includes subsequent events, it is considered a separate dismissal, and the expiration period starts counting from the date the will to dismiss was manifested.
  3. For each dismissal, it is necessary to attempt conciliation before the relevant action is brought (can be cumulative).

Dismissal of Legal Representatives

In the case of dismissal of legal representatives, an open contradictory file (55.1 ET) is tantamount to documentary evidence. The commencement of the case interrupts the prescription of the fault.

Dismissal of Union Members

For the dismissal of workers belonging to unions (55.1 ET), it is required to notify the union representative of the intention to fire the worker. The hearing officer is conditioned on the employer’s knowledge of the worker’s unionization. The hearing interrupts the prescription period.

Effects of Inappropriate Dismissal

Readmission

Workers are entitled to wages not received since the date of the notice of dismissal until sentencing. When the employer’s option is readmission (within 10 days of the notice), it will be communicated in writing to the employee, with the return date to be executed within no less than 3 days after the employer’s written notice. The employer assumes the wages until readmission. If the worker was chosen by the judge, the judge will tell the employer which worker to replace within 3 days (280.2 LPL).

Termination of Contract

Termination of the contract includes payment of processing salaries and compensation of 45 days of salary per year of work, apportioned by months for periods of less than one year, up to a maximum of 42 months. The amount of both will be determined according to Case 56.1 ET. There are two exceptions:

  1. Works with a special employment relationship, the amount of which will be ruled by LPL 110.1.
  2. Two, prevalent as agreed in collective agreements if the amount is higher. The calculation of years of service is from the day of joining the company until the day of dismissal.

Processing Wages

Processing wages result from multiplying the daily wage by the number of days elapsed since the dismissal until notification of the sentence. If the worker had been working and perceived by another employer, those amounts would be deducted. If during the investigation there were periods of leave or temporary disability, the managing body would take over (56.2 ET). It has a compensatory nature, and no limitation or exclusion is set.

The State will pay if it exceeds 60 working days.

Null Dismissal

According to 108 LPL and 55 ET, a dismissal is considered null in cases of discrimination or violation of fundamental rights. This includes:

  • Exercise of the protection of rights related to the reconciliation of work and family life (dismissal during maternity period, risk during pregnancy, childbirth, breastfeeding).
  • Dismissal of pregnant workers from the date of early pregnancy until the onset of suspension (55.5 b).
  • Dismissal of workers who have applied for a reduction in working hours due to breastfeeding or childcare leave.
  • Workers who are victims of gender-based violence.

Impact of Null Dismissal

The impact is immediate reinstatement from the date of the notice of the sentence, with payment of unpaid salary (55.6 ET). It is not applicable if they are working for another company. Additional compensation may be granted for violation of fundamental rights (180.1 LPL).