Null and Void Dismissal

GROUNDS FOR null and void dismissal:

Unless the dismissal is declared fair, it may be considered a null and void dismissal in the following circumstances:

a) Where the employer's decision to terminate the contract was motivated by any of the grounds of discrimination prohibited under the Spanish Constitution or by law, or where it was carried out in violation of the employee's fundamental rights and civil liberties (Article 54(4) of the Workers' Statute). This may also engage the guarantee of immunity from retaliation.

b) Where, over successive ninety-day periods and with the aim of circumventing the rules applicable to collective dismissals, the company carries out contract terminations (Article 52(c) of the Workers' Statute) in numbers below the relevant thresholds, without any new grounds arising to justify such action (Article 51(1) of the Workers' Statute).

c) dismissal of employees during the period of suspension of the employment contract on grounds of maternity, risk during pregnancy, risk during breastfeeding, illnesses caused by pregnancy, childbirth or breastfeeding, adoption, foster care or paternity (Article 45(1)(d) of the Workers' Statute), or any dismissal notified on a date such that the notice period granted would expire within that period.

d) dismissal of pregnant employees, from the date on which the pregnancy begins until the start of the suspension period referred to above.

e) That of employees who have requested, or are currently taking, any of the following leave or career break arrangements (Arts. 37(4), (5) and (6), and 45(1)(d) and (e) of the Workers' Statute):

- - An hour's absence from work for breastfeeding care of a child under nine months of age.
  - In cases of premature birth of a child, or where the child must remain hospitalised following delivery for any reason.
  - Any employee who, by reason of legal guardianship, has direct care of a child under twelve years of age or a person with a physical, psychological or sensory disability who does not carry out a paid activity, and who has reduced their daily working hours, with a proportional reduction in salary, by at least one eighth and up to a maximum of half of their normal hours.
  - Any employee who needs to take direct care of a family member up to the second degree of consanguinity or affinity who, due to age, accident or illness, is unable to look after themselves and does not carry out a paid activity.
  - A career break of no more than three years to care for each child, whether by birth, adoption, guardianship for adoption purposes, or permanent foster care, counting from the date of birth or, where applicable, from the date of the relevant judicial or administrative decision.
  - A career break of no more than two years, unless a longer period is established by collective bargaining, for employees to care for a family member up to the second degree of consanguinity or affinity who, due to age, accident, illness or disability, is unable to look after themselves and does not carry out a paid activity.
  - A career break for female employees who are victims of gender-based violence, taken in connection with the exercise of their rights to reduce or reorganise their working hours, geographic mobility, transfer to a different workplace, or suspension of their employment relationship, under the terms and conditions set out in the Workers' Statute.

NULL AND VOID OBJECTIVE AND COLLECTIVE DISMISSALS:

The most common ground for nullity in collective dismissals is failure to comply with the formal requirements of the collective dismissal, although other grounds may also apply.

null and void dismissal ON GROUNDS OF AGE DISCRIMINATION:

We attach here a link to the ruling of employment tribunal 33 of Madrid, which ruled the dismissal of certain employees null and void on grounds of age discrimination, awarding €20,000 in damages.

CONCLUSIONS IN THE EVENT OF A null and void dismissal:

Regarding the right to indemnity, a dismissal is null and void, as contrary to Article 24(1) of the Spanish Constitution, where it occurs after the employee has filed a formally and substantively valid complaint against the company that dismisses them.

This also applies to preparatory or prior acts that are necessary for the exercise of a legal action, where the dismissal constitutes retaliation by the employer.
A dismissal will be null and void on grounds of discrimination, as contrary to Article 14 of the Spanish Constitution, where it is carried out on grounds of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.

In this context, for example, an objective dismissal on economic and organisational grounds affecting a worker who, due to a long-term illness, is unable to carry out her professional duties on an equal footing is null and void on grounds of discrimination. This is reflected in a ruling of the High Court of Justice, which upheld the nullity of the dismissal of a worker suffering from breast cancer who had been on extended periods of temporary disability (IT), although not at the time of termination. The illness was treated as equivalent to a disability and recognised as a ground of discrimination, in line with the doctrine established by both the Court of Justice of the EU (CJEU) and the Supreme Court.
There is a closed list (numerus clausus) of grounds for null and void dismissal, which will apply unless, as indicated, the termination decision is found to be fair on grounds unrelated, for example, to pregnancy or the exercise of rights to leave or unpaid leave of absence. For a dismissal to be considered fair, it must be sufficiently established that the objective ground underlying the dismissal specifically requires the termination of the contract of the individual concerned.

In all other cases, the termination decision will be considered fair where the existence of the ground on which it was based is established and the requirements set out in paragraph 1 of this article have been met. Otherwise, it will be considered unfair.

CONSEQUENCES OF A null and void dismissal:

In cases of null and void dismissal, in addition to any interim wages the company may be required to pay, the court may also order the payment of additional compensation for breach of fundamental rights, where the company fails to rebut the evidence presented by the employee indicating unfavourable treatment or discrimination.