Table of Contents
- Intro
- Disciplinary dismissal for low performance: requirements
- Why it matters that you've never been punished before
- Protection after the birth of a child: dismissal
- The day adaptation of Article 34.8 ET
- The act of conciliation: what to expect
- Real case
- Summary: inappropriate or void
- Frequently asked questions
- Conclusion
1. Introduction
«Do not meet the objectives». It is one of the most widely used reasons for disciplinary dismissal letters, and also one of those most often hiding another reason. When the company dismisses a worker who has never been punished by low performance, and a few months after she was a mother, it is necessary to ask what the real reason is. In these cases, the law provides enhanced protection which may lead to the nullity of dismissal.
2. Disciplinary dismissal for low performance: requirements
The Article 54.2.e of the Staff Regulations allows disciplinary dismissal due to continued and voluntary reduction in the performance of normal or agreed work. It is not enough that the worker does not reach targets in certain days. The company must demonstrate that:
- The decrease is continued in time, not on time.
- Is voluntarythat is, due to the worker's lack of diligence and not to other causes such as the workload, routes or means available.
- It is measured in front of a normal or agreed performance This is often compared to other workers under similar conditions.
If the company does not prove it, the dismissal shall be at least inappropriate.
3. Why it matters that you've never been punished before
If a worker fails to meet her objectives for many different days, it is logical that the company should warn her or punish her in due course. When there is no prior warning or punishment and, suddenly, a letter of dismissal with a long list of accumulated non-compliance comes in, a reasonable doubt arises: why did the company tolerate this situation for months and decide to act right now?
This lack of prior reaction is a relevant argument at trial, because it weakens the alleged gravity of the non-compliance and points out that the real reason for dismissal may be another.
4. Protection after the birth of a child: dismissal
The Article 55.5 of the Staff Regulations It declares the dismissal of working persons who return after the termination of the contract by birth of a child to be null and void, provided that no more than 12 months have elapsed since birth. It also protects those who have requested or are enjoying the time adjustment by conciliation.
In such cases, dismissal can be maintained only if the company shows that it is due to real and non-maternity or conciliation reasons. If it fails to do so, the dismissal is null and void, and the consequence is the immediate readmission of the worker with the payment of the wages lost. You can see another example of nullity in our article on the dismissal for medical leave.
5. The day adaptation of Article 34.8 ET
The Article 34.8 of the Staff Regulations recognizes the right to request adjustments in the duration and distribution of the day to reconcile family and working life, for example for the care of a young child. The company must negotiate the request and, if it refuses it, justify it for objective reasons. We explained this in detail in our article on the day adjustment by conciliation.
Where the company provides that a worker shall exercise this right and dismiss it before it does, dismissal may be considered a retaliation linked to conciliation, thereby strengthening its nullity.
6. The act of conciliation: what to expect
Before you sue for dismissal, you need to file the conciliation ballot. In the act of conciliation, the company may recognize the inorigin, make an economic offer or maintain its position. It is also common for no agreement to be reached on that day and for negotiations to continue between lawyers on both sides before the trial.
If the company makes an offer, it should be assessed calmly: when there are strong signs of nullity, the working woman's negotiating position is much stronger. And if it is agreed, the important thing is that the agreement be well documented. We explain why in our article on the agreements signed by the legal representative of the company.
7. Real case
The video is recorded just after the conciliation act. Our client, a dealer, was fired disciplinarily because, according to the company, for different days he did not meet the requirements of the distribution: he did not distribute in time or enough. The question is clear: if this has been the case for days, why did they never warn or punish her, and wait to fire her with a letter listing the non-compliance?
The answer is in his daughter, who is 13 months old today and was 11 when the dismissal occurred. The company knew that the worker would apply for the day adaptation of Article 34.8 of the Workers' Statute. In the conciliation, the company indicated that its lawyer had not been able to attend and would contact to make an offer, that we will transfer to our client to value it.
8. Summary: inappropriate or void
| Status | Consequence | Legal basis |
|---|---|---|
| Low proven, continued and voluntary performance | Dismissed | Article 54.2.e) ET |
| Low uncredited performance | Unappropriate dismissal: readmission or compensation of 33 days per year | Article 56 ET |
| Dismissed within 12 months of birth, after rejoining | Nil unless the company proves a real cause other than maternity | Article 55.5 ET |
| Dismissal linked to day adaptation | Ritual nullity | Arts. 34.8 and 55.5 ET |
| Nil dismissal | Immediate readmission and processing wages | Article 55.6 ET |
9. Frequently asked questions
Can you fire me for not meeting targets?
Only if the decrease in performance is continued, voluntary and measured against normal or agreed performance. The company must prove it.
Is the dismissal void if I get fired during my son's first year?
If you have reinstated after the birth suspension and it has not been 12 months since birth, the dismissal is null and void unless the company demonstrates a real cause outside the maternity.
What's the difference between an inappropriate dismissal and a zero one?
In the wrong case, the company may choose to readmit or compensate. In the nil, readmission is compulsory, with the payment of the wages lost.
Should I accept the offer made by the company in conciliation?
Not necessarily. It is appropriate to compare it with what you could get at trial, given whether there are signs of nullity.
10. Conclusion
A dismissal for not meeting objectives without prior warnings or sanctions, produced a few months after being a mother, deserves careful analysis. The protection of article 55.5 of the Workers' Statute requires the company to demonstrate that the reason is real and non-maternity, and if it fails to do so, the dismissal is null and void.
In the area of Labour law de Leynver Abogados we accompany you from conciliation to trial so that your dismissal is properly qualified and you get what you have to do.
