Dismissal Law in Spain — Procedente, Improcedente, Nulo

The Spanish Dismissal Framework

Spain’s dismissal law is among the most detailed in Europe. The Estatuto de los Trabajadores (ET) establishes that employers may only validly terminate employment contracts on specific, enumerated grounds. Any termination not based on a valid legal ground, or executed without following the required procedure, is invalid — with significant financial consequences.

Every employer-initiated dismissal is ultimately classified in one of three categories:

• Procedente (fair): The ground is proven and the procedure was followed correctly. The worker receives no severance beyond their accrued entitlements.
• Improcedente (unfair): Either the ground was not sufficiently proven, or a procedural requirement was breached. The employer chooses between reinstatement or paying enhanced severance.
• Nulo (null): The dismissal is void — typically because it was discriminatory or targeted a protected right. Reinstatement is mandatory.

Types of Dismissal

Disciplinary Dismissal (Despido Disciplinario)

A disciplinary dismissal terminates the employment relationship due to serious and culpable misconduct by the worker. Article 54 ET lists the exhaustive grounds:

• Repeated and unjustified absences or lateness
• Insubordination or disobedience at work
• Verbal or physical offences against the employer, colleagues, or family members
• Breach of contractual good faith, breach of trust (transgresión de la buena fe contractual)
• Voluntary and continued reduction in productivity
• Habitual drunkenness or drug addiction that negatively affects work
• Workplace harassment based on sex, race, religion, disability, age, sexual orientation, or other grounds

Procedure: The employer must deliver a dismissal letter (carta de despido) in writing, specifying:

• The facts constituting the misconduct
• The date of effect

No advance notice is required for disciplinary dismissal. For workers with trade union representation roles (section delegates, works council members), the employer must first open a expediente contradictorio — a disciplinary hearing process.

Outcome if procedente: No severance (disciplinary dismissal is the only ground where a fair dismissal carries zero severance pay).

Objective Dismissal (Despido Objetivo)

Objective dismissal terminates the contract for reasons not related to misconduct but to the company’s situation or the worker’s aptitude. Grounds under Article 52 ET:

• Inaptitude (ineptitud): Worker’s incapacity to perform their role, arising after contracting (if before, the employer cannot have known).
• Failure to adapt: Worker’s failure to adapt to technical changes in their position, after training has been offered.
• Economic, technical, organisational, or productive causes (below the collective redundancy thresholds).
• Absence record (meeting the threshold in Article 52(d) ET — see sick leave entry).
• Insufficient funding for workers employed by foundations or public entities (specific ground).

Procedure for objective dismissal:

1. Written notice to the worker specifying the ground and the effective date.
2. 15-day advance notice period (or payment of 15 days’ salary in lieu of notice).
3. Simultaneous payment of statutory severance: 20 days of salary per year of service, capped at 12 months’ salary, calculated based on the actual salary and seniority.

The advance notice and simultaneous severance payment are mandatory. Failure to pay severance simultaneously with the notice letter does not render the dismissal null, but gives the worker the right to declare it unfair.

Collective Dismissal (ERE de Extinción)

When objective grounds affect a number of workers exceeding the statutory thresholds (see the ERE entry), the collective redundancy procedure applies, with its consultation period, worker representative involvement, and enhanced negotiated severance.

Outcomes: Procedente, Improcedente, Nulo

Procedente (Fair Dismissal)

Requirements:

• The stated ground is proven by evidence
• The required procedure was followed (written notice, advance notice or payment in lieu, etc.)
• For objective dismissal: simultaneous severance payment

Worker’s rights on procedente:

• Receives accrued holiday pay not taken (in the final settlement finiquito)
• Unemployment benefit entitlement from SEPE (if sufficient contributions)
• No additional severance beyond the statutory 20 days/year (objective) or zero days (disciplinary)

Improcedente (Unfair Dismissal)

A dismissal is unfair if:

• The stated ground is not sufficiently proven
• A procedural defect occurred (e.g., written dismissal letter missing mandatory content, failure to follow special procedure for union delegates)
• The notice period was not respected

Employer’s options within 5 working days of the court declaration (or earlier by agreement):

1. Reinstatement (readmisión): The worker returns to their position with all seniority and back pay for the period between dismissal and reinstatement.
2. Compensation (indemnización): Pay enhanced severance of 33 days of salary per year of service, capped at 24 months’ salary. For workers hired before 12 February 2012, special transitional rates apply (45 days/year for the period up to that date).

If the employer fails to choose within 5 working days, the worker is entitled to choose — typically opting for compensation over reinstatement. Special worker delegates and union representatives have the right to choose.

Nulo (Null Dismissal)

A dismissal is null when:

• It is motivated by discrimination based on the causes in Article 14 of the Spanish Constitution (sex, race, religion, ideology, origin, disability, age, sexual orientation, etc.)
• It violates a fundamental right (derecho fundamental) of the worker — freedom of expression, right to union activity, right to strike, etc.
• It occurs during or is causally connected with:
  • Pregnancy or maternity leave
  • Paternity leave (nacimiento y cuidado de menor)
  • Breastfeeding leave
  • Parental leave (permiso parental)
  • Reduced working hours for family care
  • Sick leave where the illness may constitute a disability under EU law
• It is the employer’s response to a complaint of workplace harassment

Consequences of null dismissal:

• Reinstatement is mandatory — the employer has no option to pay compensation instead.
• Full back pay for the entire period from dismissal to reinstatement.
• If the employer refuses reinstatement, the worker can seek enforcement through the courts, and additional daily penalties apply.

Conciliation Process (Acto de Conciliación)

Before filing a dismissal claim before the Juzgado de lo Social, the worker must first attempt administrative conciliation (before the SMAC or equivalent regional body). This is a mandatory prerequisite.

• Both parties appear before a conciliation officer.
• If agreement is reached, it is binding and executory.
• If no agreement, the worker may proceed to court.
• The 20-working-day deadline for filing a dismissal claim runs from the dismissal date, not from the conciliation.

Conciliation allows parties to negotiate a settlement outside litigation. Many cases settle at this stage.

Final Settlement (Finiquito)

Regardless of dismissal type, the employer must prepare a finiquito — the final settlement document detailing all amounts owed to the worker: outstanding salary, pro-rated extraordinary payments, untaken holiday pay, and applicable severance. The finiquito must be itemised. The worker should sign it “en disconformidad” (under protest) if they intend to challenge the dismissal — signing without qualification may be interpreted as acceptance.

Frequently Asked Questions

Can an employer dismiss a worker who is on sick leave? Dismissal during sick leave is not automatically null. However, if the illness amounts to a disability and the dismissal is causally linked to it, the courts may declare the dismissal null under anti-discrimination principles. Careful timing and documentation are essential.

What is the time limit to challenge a dismissal? The worker must file a claim (after conciliation) within 20 working days of the dismissal date. This is a strict deadline; missing it bars the claim. Sundays and public holidays are excluded from the count.

What is a “dismissal letter” and why does it matter? The carta de despido (dismissal letter) is mandatory for both disciplinary and objective dismissals. If it omits material facts, is vague, or does not specify a date, the dismissal may be declared unfair on formal grounds alone — regardless of whether the underlying conduct was valid grounds.

Can workers challenge both the procedure and the ground? Yes. Workers typically challenge on all available grounds. Courts assess both the substantive ground (was it proven?) and the procedure (was it followed correctly?). A dismissal can be declared unfair purely on procedural grounds even if the underlying conduct was serious.

Is there a qualifying period before dismissal protection applies in Spain? No. Unlike the UK’s two-year qualifying period, dismissal protection in Spain applies from the first day of employment. The only exception is the trial period, during which termination by either party requires no justification.