Sooner or later, many employees will face this situation during their working life: they are dismissed from their job. In order to respond correctly at this critical moment, particularly with regard to outstanding salary and severance payments, it is advisable to take the following points into account.

In Spain, there are generally three types of dismissal:

- dismissal on objective grounds (despido objetivo)

- disciplinary dismissal (despido disciplinario)

- and unfair dismissal (despido improcedente)

In most cases, the dismissal will be communicated to you in writing by means of a dismissal letter (carta de despido). This document serves as evidence of the dismissal and also sets out the grounds on which the employer has based its decision.

In Spain, employees may be entitled to severance compensation in the event of dismissal, although the amount varies considerably depending on the type and grounds of dismissal. In the case of dismissal on objective grounds, the statutory compensation is generally 20 days' salary per year of service, whereas in the case of unfair dismissal the applicable compensation may amount to 33/45 days' salary per year of service.

In the case of a disciplinary dismissal, the employee is generally entitled to neither a notice period nor severance compensation. For periods of employment completed before 13 February 2012, compensation for unfair dismissal may be calculated at 45 days' salary per year of service.

Many employers are aware of these differences and may therefore attempt to dismiss employees on disciplinary grounds even though the alleged breach of contract is not sufficiently serious to justify dismissal. Alternatively, they may rely on an objective dismissal even though the legally defined grounds for such a dismissal are not met.

If you believe that your disciplinary or objective dismissal should in fact be classified as an unfair dismissal, for example because you have not committed a serious breach of contract capable of justifying your dismissal or because you believe that the company's circumstances do not justify an objective dismissal, you may challenge the dismissal within the applicable statutory period of 20 working days. If the dismissal is declared unfair, the employer may, subject to the applicable legal provisions, have the option of reinstating you or paying the corresponding statutory compensation of 33/45 days' salary.

In any event, it is advisable to contact a lawyer (Abogado) as soon as possible, as the statutory period for challenging a dismissal is generally limited to 20 working days.

How to react when you are dismissed

If your dismissal is communicated to you verbally, it is important to be able to prove that the dismissal actually took place, so that your absence from work cannot subsequently be treated as an unjustified absence. If your employer refuses to provide you with written confirmation of the dismissal, it is advisable to document the circumstances by other appropriate means, for example through witnesses or by recording the conversation where legally permissible.

In most cases, you will be provided with the dismissal letter, the final settlement (liquidación) and the termination settlement document (finiquito) in writing, often together in a single document. Signing the dismissal letter or final settlement solely to acknowledge receipt does not normally mean that you agree with the dismissal. However, if the documents contain clauses stating that you have already received the corresponding settlement or compensation, or that you waive your right to bring legal proceedings, particular caution should be exercised. If in doubt, it may be advisable not to sign the relevant documents without first obtaining legal advice.

Our law firm will be pleased to analyse your individual situation and represent you before the Spanish authorities, your employer and the Spanish courts. If you require further information or have specific questions regarding dismissal or Spanish employment law, please feel free to contact us by email or telephone.

Author: 

J. Francisco Santos Postigo
Lawyer
CEO, Partner, Director Labour Law
info@sspartners.es
Tel: (+34) 951 12 13 06
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