Understanding Dismissal Types and Procedures in Spain

Impugning Dismissal in Spain

When facing dismissal, a worker has 20 business days, common to all dismissal types, to attend the Mediation, Arbitration, and Conciliation Service (SMAC) and file a conciliation request. This step is mandatory before initiating litigation in the Social Court. The conciliation must occur within 20 business days from the dismissal date. This act suspends the 20-day limitation period, and the count resumes the day after the attempted conciliation. The conciliation may result in an agreement or no agreement. If no agreement is reached, the worker can file a lawsuit before the Social Court.

Types of Dismissals

• Null Dismissal: Based on discriminatory grounds or violates the worker's fundamental rights and civil liberties. It entails immediate reinstatement and payment of lost wages.
• Justified Dismissal: Occurs when the employer proves the worker's claim of wrongful dismissal is unfounded. It results in automatic termination without compensation or processing wages.
• Unfair Dismissal: Occurs when the employer fails to observe formalities or cannot demonstrate the facts stated in the dismissal notice. The company has 5 days from the ruling to choose between reinstating the employee or paying them processing wages without readmission. In the latter case, the employee is entitled to:
  • Processing Wages
  • Severance pay of 45 days' salary per year of service, up to a maximum of 42 months.
• Collective Dismissal: Requires authorization from labor authorities and an employment regulation file (ERE). It is based on force majeure, technical reasons, etc.

Objective Reasons for Dismissal

• Worker's Ineptitude: The worker consistently fails to meet the expected performance standards or performs work defectively without intentional misconduct.
• Lack of Adaptation to Job Changes: The changes must be reasonable for the worker. A minimum of 2 months must be granted for adaptation to the new position.
• Amortization: Due to economic, technical, organizational, or production reasons, the company may need to eliminate positions to overcome difficulties.
• Intermittent Absences, Even Justified: Absences reach at least 20% of working days in 2 consecutive months or 25% in 4 non-consecutive months within 12 months. Absences due to illness, pregnancy, etc., are not counted.