Table of Contents
- Intro
- What is a agreed dismissal to charge for unemployment
- The risks to the worker
- Why the company proposes it
- How to react: the extinction of Article 50 ET
- The importance of recording
- Real case
- Summary
- Frequently asked questions
- Conclusion
1. Introduction
«We fix your unemployment papers: we fire you and you get the benefit.». It is a proposal that many companies make when they want to dispense with a worker without paying what is appropriate, especially the elderly, near retirement or chaining medical casualties. It may seem a favor, but it hides risks for the worker and, if it can be proved, it can turn against the company itself.
2. What is a agreed dismissal to charge for unemployment
To collect the unemployment benefit, the loss of work must be involuntary. That's why, who gives up voluntary leave He has no right to unemployment. The so-called agreed dismissal is to simulate a dismissal when in fact there is an agreement between the company and the worker to end the relationship, so that the worker can charge the unemployment.
3. The risks to the worker
Simulating a dismissal to get the benefit is a fraud. If detected, the Law on Offences and Penalties in the Social Order it provides for penalties for both the undertaking that agrees to it and the worker, who may lose the benefit and have to pay back what is claimed.
In addition, accepting a agreed dismissal often means giving up fair compensation. If the dismissal is real, it may be much more appropriate to you than the company offers. And if you receive compensation, you should know how it affects your benefit: we explain it to you in Can I charge the unemployment if I get compensation?
4. Why the company proposes it
Behind this proposal there is often a simple reality: the company does not want the worker another day. If you were willing to wait, you could let him retire normally. Proposing a agreed dismissal shows that it seeks its immediate departure in the cheapest way possible, often just when the worker returns from a medical leave.
5. How to react: the extinction of Article 50 ET
A company cannot propose to a worker a social security fraud to get rid of it. In the light of such a proposal, the worker may apply for the termination of his contract for serious breach of the company, in accordance with the Article 50 of the Staff Regulations. If the judge considers it, the worker receives the same compensation as in an inappropriate dismissal and maintains the right to unemployment. More information on the termination compensated for the worker's will.
6. The importance of recording
These proposals are almost never made in writing. Therefore, recording the conversation in which the company puts it is key to be able to demonstrate it later. It is legal to record a conversation in which you participate, and the recording, along with its transcript, can be provided to the court. We explain how to do it in Can I record my boss?
7. Real case
The director of Human Resources of the company proposed to our client, an elderly worker who returned from a medical leave, to fix the roles of the unemployment with a agreed dismissal to charge the benefit until she retired. She recorded everything. When we hear the recording, we file a petition for the termination of the contract under article 50 of the Workers' Statute, providing the full recording and transcription.
On the day of the trial, the human resources officer was outraged: he said that the worker had been announcing that she was retiring and now had to pay 7,000 euros. But he made the proposal, and it's on. The company ended up paying 7,000 euros, and our client retires with that amount.
8. Summary
| Status | Consequence | Legal basis |
|---|---|---|
| Voluntary decrease | No right to unemployment | General Social Security Act |
| Simulated dismissal to collect unemployment | Fraud: penalties for business and worker | Law on Offences and Penalties in the Social Order |
| Company proposing fraud | Possible serious non-compliance | Article 50 ET |
| Estimated judicial extension | Compensation for unfair dismissal and right to unemployment | Article 50 ET |
| Proof of the proposal | Recording of the conversation in which you participate | Admitted to trial if lawful |
9. Frequently asked questions
Is it legal for the company to fire me to get the job done?
No, if it's actually an agreement for you to leave the company. Simulating a dismissal to obtain the benefit is a fraud that can be punished.
What risk is there if I accept a agreed dismissal?
If the fraud is detected, you can lose the benefit and have to pay back the charges. Besides, you may be giving up a higher compensation.
What do I do if my company proposes?
Don't sign anything, try to record the conversation in which you participate and consult with a labor lawyer.
Can I request the termination of my contract with compensation?
Yes, if the company commits a serious breach. The judge shall decide whether the conduct of the company justifies the compensable termination of article 50 ET.
10. Conclusion
An agreed dismissal to charge unemployment may seem a comfortable way out, but it is a fraud with risks to the worker. And when it is the company that proposes it to get rid of someone, that well-documented proposal can become the argument that forces the company to pay.
In the area of Labour law de Leynver Abogados we advise you before signing anything and we defend your rights in front of the company.
