Employment lawyer

Different ways to extinguish a contract in Spain: redundancies, disciplinary dismissal, contractual modifications, etc.

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Written by Josep Conesa

Labour and bankruptcy lawyer

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employment dismissals in spain

• Sometimes an employee may need an employment lawyer as a result of being fired, perhaps for economic reasons or even for disciplinary reasons. 
• Sooner or later, companies may also need an employment lawyer in the face of the need to adopt labour measures.

WE HELP BOTH, EMPLOYEES AND EMPLOYERS

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different ways to extinguish a contract in spain: 

1.      Employee’s withdrawal

The employee may leave the company at any moment and, in such cases, the company has no obligation to give him any indemnification, just the proportional earned vacations, salary and extra payments.

As our Gesoffice organises payrolls, don't hesitate to ask us for any corresponding calculations.

2.      dismissal for Disciplinary reasons

A judge can rule this type of dismissal to be either fair, unfair or null.

Fair OR LAWFUL DIMISSAL

The company will not have to pay anything because disciplinary reasons have been proven.

Unfair OR UNLAWFUL dismissal

The company will have to pay an indemnification, the amount of which will be calculated taking into consideration two different periods:

• Until 12/02/2012 the indemnification will be 45 days of salary per year of service at the company, with a maximum of 42 months of salary.
• From 12/02/2012 until the day of dismissal, the indemnification will be 33 days of salary, per year of service at the company, with a maximum of 24 months of salary.
  
  

Null DISMISsAL

If the Judge concludes that the company has infringed a fundamental right:

The consequence will be the readmission of the worker, who will have with right to perceive salary from the day on which he/she was sacked plus an additional indemnification if they have claimed damages.

3.      Contract termination for objective reasons

The company can try to terminate the employee’s contract by citing objective causes. 

Basically, the accepted objective causes are: economical, technical, organisational and productive causes.

In such cases, the company must, along with the letter of dismissal, provide the employee with 20 days of salary per year of service at the company, with a maximum of 12 months of salary. 

The employee may make a claim against the reasons alleged by the company, and a judge will consider if the dismissal was fair or unfair:

Fair

The 20 days of indemnification will be adequate. 

Unfair

The company will have to make an additional payment to the employee, so that the total that the employee has been paid for the dismissal amounts to 45 days of salary per year of service at the company, with a maximum of 42 months of salary (or, as mentioned above, 33 days with an upper limit of 24 months from 12/02/2012).

When defending such objective reasons the company will need corporate lawyers and economists who specialise in these kinds of individual or collective dismissals to ensure that their reasons are backed up by convincing evidence which may be put forward during a negotiation or to a judge. To this end, don't hesitate to get in touch with our experienced team: 

4.      Contractual modifications

There are other ways for the contract to be extinguished, one of which being the consequence of a substantial modification, or a move.

Substantial contractual modifications:

If the company modifies the timetable, either the hours or the distribution of the timetable, the shifts, the salary or remuneration system or the employee's category, the employee may make a claim against it or perceive an indemnification of 20 days of salary per year of service at the company, with a maximum of 9 months of salary, leaving the company.

The company has to justify these changes by means of the same objective reasons mentioned previously: economical, technical, organisational or productive causes.

Moving:

If the workplace moves so far away that the employee has to change his or her address, the employee may make a claim against it or perceive an indemnification of 20 days of salary per year of service at the company, with a maximum of 12 months of salary, leaving the company.

The company has to justify this move by means of the same objective reasons mentioned previously: economical, technical, organisational or productive causes.

5.      The employee can claim contractual resolution in cases of company non-fulfillment

If the company does not fulfil its basic contractual labour obligations, the employee can make a claim in Court by virtue of his or her labour contract, with right to 45 days of salary per year of service at the company, with a maximum of 42 months of salary indemnification (or, as mentioned, 33 days and a maximum of 24 months from 12/02/2012).

Link to our employment experts

HOW WE CAN HELP AS AN INTERNATONAL LAW FIRM IN BARCELONA

We are a local, open-minded law firm that has enjoyed watching our world become more and more globalised. In turn, our lawyers have also become international and, as such, we can offer you professional and value-driven support in English, French or Spanish. 

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EMPLOYMENT consultancy and PAYROLL CALCULATIONS

Companies in this position need to be able to count on sound labour law and employment advice before taking action, as well as payroll services in Spain in order to provide the employees with the settlement they are due.  The payroll specialist will have to do some calculations in order to avoid any future claims.