In Spain, there are different types of dismissal that can affect workers. It is important to know them in order to understand the rights that correspond to them in each case. Below, we describe the main types of dismissal and the rights that workers have in each of them:
1. Fair dismissal
It is produced by objective causes, such as a business reorganization or a decrease in the workload. In this case, the employer must pay the corresponding compensation to the employee, which will depend on the reason for the dismissal. The compensation will be 20 days per year worked with a maximum of 12 monthly payments.
a. Disciplinary dismissal
This type of dismissal occurs when the employee commits a serious misconduct that justifies his dismissal. The causes may be varied, such as non-compliance with work obligations, unjustified lack of attendance, harassment or discrimination. The employee is not entitled to compensation, unless he/she sues the company and the judge declares the dismissal unjustified.
b. Objective dismissal
Objective dismissal occurs when the company needs to reduce its workforce for economic, technical, organizational or production reasons. In this case, the employee is entitled to a severance payment, which will depend on the employee’s seniority in the company, and will generally be 20 days per year worked with a maximum of 12 monthly payments. If the company does not duly accredit the causes of the dismissal, the employee may claim compensation for unfair dismissal.
2. Unfair dismissal
This is a dismissal that does not comply with the law. This may be due to the fact that the employer has not adequately justified the dismissal or that the procedure has not been carried out correctly. In this case, the worker may choose between reinstatement in his job or the payment of compensation. If the employee opts for reinstatement, the employer must pay him/her the corresponding wages from the time of dismissal until the date of reinstatement. If the employee opts for compensation, this will be 33 days per year worked with a maximum of 24 monthly payments.
3. Null and void dismissal
It is considered discriminatory or contrary to the law. For example, if a worker is dismissed because of his sexual orientation, religion or gender, for exercising his labor rights or for being pregnant, breastfeeding or caring for a child.
In the event that a dismissal is declared null and void, the employee must be reinstated in his job immediately and with the payment of the wages that he has not received since the time of dismissal.
In any case, the employee has the right to challenge the dismissal if he/she considers that it was unfair or illegal. To do so, he/she must file a lawsuit before the Social Court within 20 working days from the notification of the dismissal.
If you have suffered a dismissal, we recommend that you seek advice and protect your rights with an expert labor lawyer.
