Find here the different types of dismissals in Spain, how to proceed and what are the consequences they can lead to.
In Spain, there are two types of dismissal or two different main ways to resolve an employment contract:
- Firing because there are disciplinary reasons
- Layoffs dismissals or redundancies because objective resaons.
DISCIPLINARY DISMISSAL IN SPAIN:
Disciplinary dismissal occurs when there has been a serious and culpable breach by the employee.
Serious non-compliance reasons are established by law. Therefore, a worker can only be dismissed in a disciplinary manner if they have committed one of these cases.
¿Where can you find legal reasons for a dismissal in Spain?
- In the collective bargaining agreement is the legal framework for the activity or company's sector. If a fault is considered very serious, it will be taxed. The employer may use these taxes as sanctions, as they are established by the agreement. If the fault is taxed as very serious there are two possible actions for the company:
* the sanction can be 2 months non working and non paid sanction.
*the sanction can be the dismissal.
- The Workers' Statute establishes the types of conduct for which a worker may be dismissed. This can be found in Article 54.
- Repeated and unjustified lack of attendance or punctuality to work.
- Indiscipline or disobedience at work.
Offenses against the employer, coworkers, and family members who live with them are not tolerated. This includes both verbal and physical offenses.
- The transgression of the contractual good faith, as well as the abuse of confidence in the performance of the work.
Transgression of the contractual good faith is a generic concept. It means that the employee has broken the trust which is necessary in any employment relationship.
- The continuous and voluntary decrease in the normal or agreed work performance.
- Habitual drunkenness or drug addiction if they have a negative impact on work.
- Harassment based on racial or ethnic origin, religion or beliefs, disability, age, sexual orientation, and sex is prohibited. This applies to both the employer and employees. Sexual harassment is also not tolerated and it is necessary for all kind of companies to have a prevention risk protocol.
Create a Disciplinary Action Policy in the Workplace
This is an important consideration in the current business climate. Generic reasons for disciplinary action can be outlined in a company policy, making it clear what factors may lead to dismissal. This makes the disciplinary process more transparent, and allows employees to understand the consequences of their actions. Additionally, having a clear policy in place can help protect employers in the event of a dispute or lawsuit.
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What possibilies exist in front of a disciplinary dismissal in Spain?
- If the dismissal is declared fair the employee will not entitled to severance pay.
- The employee will be entitled to a legal severance payment if they feel it is unfair. Alternatively, if the company decides, they can be readmitted. Calculate the cost of dismissal in Spain with this link. Find out the legal severance payment for unfair dismissal.
- The dismissal will be ruled as null if it infringes a fundamental right. The employee must be readmitted, along with possible damages.
- The company must pay the proportionate amount of extra payments that the employee is entitled to, but has not received. They must also pay the proportionate amount of vacation time the employee has not been able to take.
- For this dismissal it is not necessary to give any pre notice.
- The employee will entitled to unemployment benefits because it is not a voluntary leave.
How to proceed with a disciplinary dismissal in Spain?
Once the dismissal has taken place, there are two possible scenarios:
The worker accepts that it is a disciplinary dismissal and signs it and does not take any action.
The employee considers that it is an unfair dismissal and decides to file a claim.
To do so, the worker has 20 working days (article 103 Ley 36/2011, de 10 de octubre, reguladora de la jurisdicción social) and 4 things can happen with his/her claim:
- It is necessary to go to court via a prior conciliation act (called CMAC). This procedure gives the parties the chance to negotiate. If it is beneficial to them, they can come to an agreement.
- If no agreement is reached, both parties will meet at Court for a conciliation attempt. This is usually done on the same day as the trial. If agreement is still not reached, the Judge will evaluate the evidence and decide if the dismissal is:
- Fair: In this case the court considers that the disciplinary dismissal has been carried out in accordance with the law, that the company proved the facts at the letter of dismissa, and, for this reason, the employee is not entitled to any type of compensation for any aspect.
- Null: If the dismissal is declared null and void, for being discriminatory or for any violation of fundamental rights, in this case the company will have to readmid the employee again at the company paying all salaries he/she has not earn during the judicial proceeding, and the compensation that the court considers for the violation of fundamental rights.
- Unfair: in this case the company has 5 days to decide between he two commented options:
Hiring the worker again by paying him/her all the arrears.
Paying him/her the unfair dismissal (33 days per year worked).
Here employment lawyer's diligence is important sofar that, and it is important to say, that in the event that the employer does not file a written document with the court clerk within the stipulated period of 5 days, it will be understood that the company chooses to reinstate the worker.
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This dismissal can be caused for other reasons different that employee's behaviour, in the circumstances established by law, which can be found in Article 52 of the Workers' Statute and can be summarized as follows:
- Supervening ineptitude.
- Lack of adaptation after a previous substantial modification of contractual conditions.
- Due to economic, technical, organizational or production causes
WHAT HAPPENS IF THE COMPANY IS DOING A DESPIDO OBJETIVO - OBJECTIVE DISMISSAL?
- The worker is entitled to a compensation of 20 days per year worked up to a maximum of 12 monthly payments.
- The employee is entitled to unemployment benefits.
- It is necessary to give 15 days' notice to the employee.
- The employee is entitled to his settlement, which will be made up of the pro rata of the extra payments (if he/she is entitled to them), which he/she has not received and the pro rata of the vacations that he/she has not enjoyed.
PROCEDURE FOR A DESPIDO OBJETIVO OR ECONOMICAL REDUNDANCY
In the case of the objective dismissal, it works in the same way as in the disciplinary dismissal, in the event that the worker is not in agreement he/she can sue, previously he/she will have to carry out the process of prior conciliation and once done, if an agreement is not reached, the court will decide on the fairness, unfairness and nullity of the dismissal.
* It is important to say that if the company wants to layoff redundancies for more than a 10% of the workforce there must go through the colective dismissal.
Employment lawyers in Spain:
If you are facing an unfair dismissal or you are interested in obtaining more information about the process of dismissal and claiming an amount in Spain contact to obtain legal advice and representation all arround Spain.
Our team of expert lawyers are specialized in individual and collective dismissals and can provide you with the legal advice and representation you need to help you with your case.
We understand that facing an unfair dismissal can be difficult, so our lawyers are here to provide you with the guidance and support you require throughout the process. Our team is available all around Spain, so contact us today if you are interested in learning more about the dismissal process and claiming a compensation or defend for its claim.