Null and void dismissal. What it is and consequences in a null dismissal.

A null and void dismissal is one in which the dismissal infringes the employee's civil liberties or fundamental rights. For example, dismissing an employee because she is pregnant, dismissing an employee because of their race, religion or sexual orientation, or dismissing an employee for taking part in a strike are all examples of null and void dismissal. In this article, as expert employment lawyers, we explain what a null and void dismissal is and what its consequences are.

What is a null and void dismissal?

According to Article 55.5 of the Workers' Statute, a null and void dismissal is any unilateral termination of an employment contract by the employer that infringes the employee's civil liberties and fundamental rights.

Therefore, a null and void dismissal occurs when it is based on a legally prohibited reason or infringes the employee's fundamental rights. In the case of unfair dismissal, there is insufficient justification for the dismissal, whereas a null and void dismissal is an unlawful dismissal.

However, proving that a dismissal is null and void is not easy. Generally, the employer relies on disciplinary or objective grounds to terminate the employment relationship through a dismissal. The employee must then challenge the decision before the relevant Social Court. Only a judge, after hearing the relevant statements in court and considering the evidence submitted, can rule that the dismissal is null and void.

Grounds for a null and void dismissal

We already know that a dismissal can only be declared null and void when the termination of the contract is motivated by an infringement of the employee's fundamental rights and civil liberties. In addition, Article 55.5 of the Workers' Statute establishes several specific circumstances in which a dismissal will be null and void:

• Employees during periods in which their employment contract is suspended due to childbirth, adoption, guardianship for the purposes of adoption, foster care, risk during pregnancy, risk during breastfeeding, parental leave or illnesses caused by pregnancy, childbirth or breastfeeding, or when the dismissal decision is notified on a date such that the notice period granted ends within any of these periods.
• Pregnant employees from the beginning of the pregnancy until the start of the period of suspension referred to in the previous section.
• When the dismissal affects an employee who has requested or is taking leave to care for a breastfeeding child under 9 or 12 months of age.
• Employees who have requested a reduction in working hours to care for children with cancer or another serious illness.
• Victims of gender-based violence or sexual violence.
• Employees after returning to work following periods in which their employment contract was suspended due to childbirth, adoption, guardianship for the purposes of adoption or foster care, provided that no more than twelve months have elapsed since the date of the birth, adoption, guardianship for the purposes of adoption or foster placement.

For a dismissal to be considered null and void, the employee must demonstrate that any of the circumstances mentioned above was the reason for terminating the contract. If the employer provides evidence that the grounds stated in the dismissal letter are genuine, the judge will consider the dismissal lawful.

What is protection against retaliation?

It means that an employee cannot be dismissed in retaliation for exercising or asserting their rights. For example, if an employee reports the company to the Labour Inspectorate, the company cannot dismiss them for that reason because they are protected against retaliation.

Consequences of a null and void dismissal

A null and void dismissal has an immediate consequence: the employer will be required to reinstate the employee in their former position. The judge will specify the period within which this decision must be implemented, which in no case will exceed 3 working days.

But what happens if the employer does not comply with the decision? In this case, the employee must notify the court so that the judge can take the appropriate measures. The usual course of action is to grant a new period of 5 days and require a payment equivalent to 6 months' salary.

Compensation for null and void dismissal

When a dismissal is declared null and void, the employee is not entitled to compensation as they would be in cases of unfair dismissal or dismissal on objective grounds, but they are entitled to receive the wages they have lost and may bring a separate claim against the company seeking compensation for the damages caused by the dismissal. These damages may be material (for example, if not receiving their salary prevented them from paying their mortgage or other debts) or non-material (if the situation caused anxiety, depression or other psychological problems).

Back pay

As mentioned above, the employer is required to pay the employee the wages owed from the date on which the termination of the contract took effect until the date of the judgment declaring the dismissal null and void.

This is known as back pay, and there are only two exceptions affecting the amount payable:

• The employee finds another job during the court proceedings. In this case, the employer may deduct the amount of salary that the employee has received from their new employer.
• The employee has received unemployment benefit during the period in which they were dismissed. The employer is required to pay the employee the difference between the amount received in unemployment benefit and their salary. In addition, the employer will have to reimburse the Social Security system for the benefits received by the employee.

In addition, the employer will be required to register the employee with the Social Security system and pay their Social Security contributions for the entire period during which they were dismissed.

I have been subject to a null and void dismissal and do not want to return

You may be dismissed by your company and, after a period of litigation with the organisation, decide that you do not want to return. In this case, once reinstatement has been ordered, the employee is entitled to refuse to return, in which case they may apply for unemployment benefit provided they meet the relevant requirements. However, they will not receive compensation.

This does not apply where reinstatement is impossible, for example, because the company has ceased trading. In this case, in addition to back pay, the employee will receive compensation equivalent to that provided for unfair dismissal. The same will apply if the employee has been a victim of harassment or violence in the workplace.

In short, this is everything you need to know about null and void dismissal. We hope we have clarified any questions you may have on the subject. For further information, contact an lawyer specialising in dismissals at our law firm.