Lawyers Dismissals Madrid

The employment contract may be terminated by decision of the employer by dismissal based on a serious and culpable breach of contract by the employee.

The following shall be considered breaches of contract

a) Repeated and unjustified lack of attendance or punctuality at work.
b) Indiscipline or disobedience at work.
c) Verbal or physical offences against the employer or persons working in the company or family members living with them.
d) Breach of contractual good faith, as well as breach of trust in the performance of work.
e) Continuous and voluntary reduction in normal or agreed work performance.
f) Habitual drunkenness or drug addiction if they have a negative impact on work.
g) Harassment on grounds of racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual harassment or harassment on grounds of sex against the employer or persons working in the company.

Form and effects of termination on objective grounds

1. The adoption of the termination agreement pursuant to the provisions of the previous article requires compliance with the following requirements:
   • a) a) Written communication to the worker stating the cause.
   • b) At the same time as the written notice is given, the worker shall receive compensation of twenty days' pay per year of service, with periods of less than one year being prorated by months and with a maximum of twelve monthly payments. When the termination decision is based on Article 52.c) of this Act, with the allegation of an economic cause, and as a consequence of this economic situation it is not possible to provide the worker with the compensation referred to in the previous paragraph, the employer, stating this in the written notice, may cease to do so, without prejudice to the worker's right to demand payment from the employer when the termination decision becomes effective.
   • c) Granting of a period of notice of fifteen days, calculated from the delivery of the personal communication to the worker until the termination of the employment contract. In the case contemplated in Article 52.c), a copy of the written notice shall be given to the workers' legal representatives for their knowledge.
2. During the period of notice, the worker, or his legal representative in the case of a disabled person who has one, shall be entitled, without loss of pay, to six hours' leave per week in order to look for new employment.
3. The dismissal decision may be appealed against as if it were a disciplinary dismissal.
4. When the employer's decision to terminate the employment is based on any of the causes of discrimination prohibited in the Constitution or in the Law, or when it has been produced in violation of the fundamental rights and public liberties of the worker, the decision to terminate the employment shall be null and void, and the judicial authority shall make such a declaration ex officio.

   The termination decision shall also be null and void in the following cases:

   • a) That of workers during the period of suspension of the employment contract due to maternity, risk during pregnancy, risk during breastfeeding, illness caused by pregnancy, childbirth or breastfeeding, adoption or fostering or paternity referred to in Article 45(1)(d), or that notified on a date such that the period of notice granted ends within that period.
   • b) that of pregnant workers, from the date on which the pregnancy begins until the beginning of the period of suspension referred to in point a), and that of workers who have requested or are taking leave of absence referred to in Article 37(4), (4a) and (5), or who have requested or are taking leave of absence referred to in Article 46(3); and that of female workers who have requested or are taking leave of absence referred to in Article 46(4), (4a) and (5), or who have requested or are taking leave of absence referred to in Article 46(3). 46; and that of female workers who are victims of gender violence due to the exercise of their rights to reduce or rearrange their working time, geographical mobility, change of work centre or suspension of the employment relationship under the terms and conditions recognised in this Act.
   • c) That of workers after having returned to work at the end of the periods of suspension of the contract due to maternity, adoption or fostering or paternity, provided that no more than nine months have elapsed since the date of birth, adoption or fostering of the child. The provisions of the above paragraphs shall apply, unless, in such cases, the decision to terminate the contract is declared to be justified for reasons unrelated to pregnancy or to the exercise of the right to the leave and leave of absence mentioned above. The termination decision shall be considered unfair when the cause on which the termination decision was based is not accredited or when the requirements established in paragraph 1 of this article have not been met. However, the failure to give notice or an excusable error in the calculation of the compensation shall not determine the unfairness of the dismissal, without prejudice to the employer's obligation to pay the wages corresponding to said period or the payment of the compensation in the correct amount, regardless of the other effects that may be applicable.
5. The classification by the judicial authority of the nullity, validity or unlawfulness of the dismissal decision shall produce the same effects as those indicated for disciplinary dismissal, with the following modifications:
   • a) In the event that the dismissal is justified, the worker shall be entitled to the compensation provided for in paragraph 1 of this Article, consolidating it if he/she has received it, and shall be understood to be unemployed for a reason not attributable to him/her.
   • b) If the termination is declared unfair and the employer proceeds to reinstate the worker, the worker shall be reimbursed the compensation received. If the reinstatement is replaced by financial compensation, the amount of such compensation shall be deducted from the compensation.

Remember that you must lodge a complaint against the dismissal within 20 working days. This period is a time limit.

First you must go to the SMAC and if you do not reach an agreement, you must go to the Social Court.

Our Employment Lawyers in Madrid will advise you on the steps and procedures to be followed at all times.

The dismissal will be classified as fair, unfair or null and void.

Dismissal shall be considered fair when the breach alleged by the employer in his letter of notice is proven. The dismissal shall be considered unfair if it is not in accordance with the provisions of paragraph 1 of this Article or if its form does not comply with the provisions of paragraph 1 of this Article.

Dismissal shall be null and void if it is based on any of the causes of discrimination prohibited by the Constitution or by law, or if it occurs in violation of the fundamental rights and public liberties of the worker.

Dismissal shall also be null and void in the following cases:

• a) That of workers during the period of suspension of the employment contract due to maternity, risk during pregnancy, risk during breastfeeding, illness caused by pregnancy, childbirth or breastfeeding, adoption or fostering or paternity referred to in Article 45(1)(d), or that notified on a date such that the period of notice granted ends within that period.
• (b) that of pregnant workers, from the date on which the pregnancy begins until the beginning of the period of suspension referred to in point (a), and that of workers who have applied for or are on leave as referred to in Article 37(4), (4a) and (5), or have applied for or are on leave as referred to in Article 46(3), and that of female workers who are on leave as referred to in Article 46(4), (4a) and (5), or who have applied for or are on leave as referred to in Article 46(4), (4a) and (5) 46; and that of female workers who are victims of gender violence for exercising their rights to reduce or rearrange their working time, geographical mobility, change of work centre or suspension of the employment relationship, under the terms and conditions recognised in this Act.
• c) That of workers after having returned to work at the end of the periods of suspension of the contract due to maternity, adoption or fostering or paternity, provided that no more than nine months have elapsed since the date of birth, adoption or fostering of the child.

The provisions of the above paragraphs shall apply unless, in such cases, the dismissal is declared null and void for reasons unrelated to pregnancy or to the exercise of the right to the aforementioned leave of absence.

The null dismissal shall have the effect of immediate reinstatement of the worker, with payment of the wages lost. Fair dismissal shall validate the termination of the employment contract that occurred with the dismissal, without the right to compensation or wages for processing.

When the dismissal is declared unfair, the employer, within five days of notification of the judgement, may choose between reinstatement of the worker, with payment of the processing wages provided for in paragraph b) of this section 1, or payment of the following economic benefits, which shall be established in the judgement:

• a) An indemnity of forty-five days' wages per year of service, with periods of less than one year being prorated by months up to a maximum of forty-two monthly payments.
• b) An amount equal to the sum of the wages lost from the date of dismissal until the notification of the judgement declaring the unfairness or until he/she had found another job, if such placement was prior to said judgement and the employer proves what was received, to be deducted from the wages for processing.

In the event that the choice between reinstatement or compensation corresponds to the employer, the employment contract shall be understood to be terminated on the date of dismissal, when the employer acknowledges the unfairness of the dismissal and offers the compensation provided for in paragraph a) of the previous section, depositing it at the Social Court at the disposal of the worker and informing the latter.

When the worker accepts the compensation or when he/she does not accept it and the dismissal is declared unfair, the amount referred to in paragraph b) of the previous section shall be limited to the wages accrued from the date of dismissal until the date of the deposit, except when the deposit is made within forty-eight hours of the dismissal, in which case no amount shall be accrued.

For these purposes, the recognition of unfairness may be made by the employer from the date of dismissal until the date of conciliation.

In the event that the employer does not opt for reinstatement or compensation, it is understood that the former is applicable.

If the dismissed worker is a legal representative of the workers or a trade union delegate, the option shall always correspond to the latter. If he/she does not make the choice, it shall be understood that he/she is opting for reinstatement. When the option, express or presumed, is in favour of reinstatement, reinstatement shall be obligatory.