null and void dismissal for Breach of Fundamental Rights

Written by Albert Perez 

Employment Law Adviser

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WHAT IS A NULL AND VOID DISMISSAL?

null and void dismissal is defined in Article 55.5 of the Workers' Statute, as follows: 

"5. A dismissal shall be null and void where it is motivated by any of the grounds of discrimination prohibited under the Constitution or by law, or where it is carried out in violation of the fundamental rights and civil liberties of the employee."

null and void dismissal grounds:

• Grounds of discrimination prohibited under the Constitution or by law (this includes the right to indemnity, which protects the employee against retaliation by the employer when the employee asserts a right — whether through the Labour Inspectorate or through the courts).
• Violation of the fundamental rights and civil liberties of the employee. 
• A dismissal shall also be null and void in the following circumstances:
• The dismissal of workers during periods of suspension of the employment contract on grounds of birth, adoption, pre-adoption guardianship, foster care, risk during pregnancy or risk during breastfeeding as referred to in Article 45.1(d) and (e), or due to illness caused by pregnancy, childbirth or breastfeeding, or a dismissal notified on a date such that the notice period granted expires within any of those periods.
• The dismissal of pregnant workers, from the start of the pregnancy until the beginning of the suspension period referred to in the preceding point; the dismissal of workers who have requested or are currently enjoying any of the entitlements referred to in paragraphs 4, 5 and 6 of Article 37, or who have requested or are currently on the leave of absence provided for in Article 46.3; and the dismissal of workers who are victims of gender-based violence, in the exercise of their right to effective judicial protection or of the rights recognised under this Act to ensure their protection or their right to comprehensive social assistance.

Once dismissal has taken place, if the employee considers that they fall within any of the situations listed above, they may bring a claim against the company, seeking a declaration that the dismissal is null and void. 

Reversal of the burden of proof

Once the claim has been filed by the employee, if they allege that fundamental rights have been violated, a reversal of the burden of proof takes effect, meaning it is the company that must prove no such violation of fundamental rights has occurred. 

Is it always the company that must prove no fundamental rights violation has taken place?

No. According to case law — including the ruling of the Constitutional Court dated 22 October 2001 — the court established the following: 

"It is not sufficient for the employee merely to assert that such a violation has occurred; rather, they must establish the existence of indicators giving rise to a reasonable suspicion."

Accordingly, for the reversal of the burden of proof to apply, the employee must put forward sufficient facts to enable the company to mount a defence. 

Consequences of null and void dismissal FOR THE employee

• The employee is reinstated at the company
• No dismissal compensation is payable
• The employee receives compensation for the violation of fundamental rights, the amount of which will be determined by the court (Constitutional Court ruling of 15 March 2021)
• The employee receives interim salary payments for the duration of proceedings

Consequences of null and void dismissal FOR THE company

• The employer must reinstate the employee
• No compensation is payable for unfair dismissal
• The employer must pay the compensation for null and void dismissal, and the court will determine the amount (Constitutional Court ruling of 15 March 2021 )
• The company must pay the employee's interim wages (salarios de tramitación) for the period of the proceedings.

Interim wages (salarios de tramitación): 

These are the wages the employee would have earned had they continued working for the company. Accordingly, once the employee finds new employment with a salary equal to or higher than their previous one, they cease to be entitled to interim wages — receiving them only up until the point they start that new role. 

CASE LAW ON null and void dismissal: 

Fundamental right recognised under Article 14 of the Spanish Constitution — the right to equality and non-discrimination: (STSJ Madrid no. 766/2011, of 23 November 2011, ECLI:ES:TSJM:2011:13381).

Fundamental right recognised under Article 24 of the Spanish Constitution — the right to immunity from retaliation (derecho de indemnidad). (STS, appeal no. 2736/2004, of 6 October 2005, ECLI:ES:TS:2005:5933).

Employment Lawyers:

For this type of dismissal, it is strongly advisable to seek expert advice from a qualified employment lawyer.

If you are looking for advice on null and void dismissals — whether because you believe you may have experienced one, or because, as a company, you need guidance on the matter — do not hesitate to contact Conesa Legal to find the best professionals in employment law.