Employment · Employees
You have been dismissed
The first thing to know is that the clock is already running: a dismissal claim lapses twenty working days after the effective date. Saturdays, Sundays and public holidays do not count, but the time is not recoverable either: once that period has passed there is no claim, however strong the case was.
Below you will find a calculator that applies the rules of the Workers’ Statute (Estatuto de los Trabajadores), including the special regime for contracts predating February 2012, and the detail of what makes a dismissal unfair.
What to do today
Four things that cost nothing and that shape everything that follows.
Note the effective date
It is the date stated in the letter, not the day it was handed to you if the two differ. The twenty working days start running from the following day.
Keep the letter and your payslips
The dismissal letter defines the case: the employer cannot later rely on facts not stated in it. Gather your last twelve payslips and the contract as well.
If you sign, sign «no conforme»
Signing the acknowledgement of receipt is harmless, and refusing does not prevent the dismissal. The final settlement is a different matter: write «no conforme» next to your signature before handing it over.
Claim unemployment benefit anyway
Challenging the dismissal does not prevent you from claiming the benefit, and it has its own deadline of fifteen working days. If the proceedings end in reinstatement, it is regularised afterwards.
If what lies behind it is long-term sick leave or a decision on permanent disability, the rules are different and the deadlines shorter.
Fair, unfair or null and void
The whole procedure turns on which of the three classifications your dismissal deserves. The difference between them is the difference between receiving nothing, receiving compensation, or returning to your job.
Fair
No compensationThe employer proves the ground it relied on and complied with the required form. In a disciplinary dismissal no compensation is payable; in an objective dismissal you keep the twenty days per year already made available to you.
Unfair
33 days per year · max. 24 months of salaryThe ground is not proved, or the form was not observed. The employer then chooses between reinstating you —with the pay lost in the meantime— or paying you the compensation; the employee does not choose, unless they are an employee representative or a union delegate.
Null and void
Compulsory reinstatement + back payWhere the dismissal infringes fundamental rights or affects one of the specially protected situations: pregnancy, leave and suspensions for birth and childcare, risk during pregnancy or breastfeeding, or victims of gender violence. Here the employer cannot choose: it reinstates you and pays what you lost.
Legal basis: arts. 53, 55 and 56 of the Workers’ Statute (consolidated text approved by Royal Legislative Decree 2/2015), and the eleventh transitional provision for contracts predating 12 February 2012.
Calculator
What are you owed?
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Compensation calculation
Four details and you have the figure
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The real date your service began. If you had successive fixed-term contracts with no significant break, count the first one.
The effective date stated in the letter.
Gross, before deductions. Excluding allowances you do not receive regularly.
Your collective agreement sets this. If your payslip already includes the pro rata share of the extra payments, it is 12.
What usually goes wrong in the letter
A good share of the dismissals that end up declared unfair are not unfair because the employee did nothing wrong, but because the employer did not document it as the law requires. It is worth having a lawyer read the letter before you decide anything.
Generic facts, with no dates
The letter must state the specific facts giving rise to the dismissal and the effective date. «Poor performance» or «loss of confidence», without more, leaves no room to defend yourself, and at the hearing the employer cannot add what it did not write.
Compensation not made available
In an objective dismissal, the twenty days per year must be handed over at the same time as the letter. If it is not made available —save for a lack of liquidity relied on in the letter itself on economic grounds— the dismissal is unfair.
Notice period not observed
An objective dismissal requires fifteen days’ notice. Failing to give it does not make the dismissal void, but it obliges the employer to pay the salary corresponding to the days of notice not observed.
A ground that does not hold up
In a dismissal on economic grounds, the employer has to prove the situation it relies on and its connection with your post. A generic fall in revenue, with no accounting support, is not enough.
How the procedure works
Review of the letter and the payslips
Before anything else we need to know what can be sustained. At this stage we settle the classification to be sought and the figure to be claimed.
Conciliation application
It is filed with the mediation and arbitration service, and filing it suspends the lapse period. Many dismissals are settled here, by agreement and without a hearing.
Claim before the Employment Tribunal
If there is no agreement, the claim is filed. Dismissal proceedings are dealt with urgently and take precedence.
Hearing and judgment
The judgment classifies the dismissal. An appeal (recurso de suplicación) lies against it to the High Court of Justice.
Frequently asked questions
How long do I have to challenge a dismissal?+
Twenty working days from the effective date of the dismissal. They are not calendar days: Saturdays, Sundays and public holidays do not count. It is a lapse period, so once exhausted the claim is lost with no way of recovering it. Filing the conciliation application suspends the count.
Does signing the dismissal letter harm me?+
Signing the acknowledgement of receipt only proves that you have received it, and the deadline starts running that day. Signing the final settlement (finiquito), with or without the words «no conforme», is a different matter: a settlement signed in agreement, for an amount that closes off the relationship, can make a later claim more difficult. If you are going to sign something that same day, add «no conforme» next to your signature.
What am I owed if the dismissal is unfair?+
Thirty-three days’ salary per year worked, with periods of less than a year apportioned by month, up to a maximum of twenty-four monthly payments. If your contract predates 12 February 2012, time worked up to that date is paid at forty-five days per year, and only the period after it at thirty-three.
And if it is an objective dismissal, on economic grounds?+
The statutory compensation is twenty days’ salary per year, up to a maximum of twelve monthly payments, and the employer must make it available to you when it hands you the letter, unless it relies on a lack of liquidity on economic grounds. It must also give you fifteen days’ notice. The employer calling it objective does not make it so: if the ground is not proved, the dismissal is unfair and the compensation rises to thirty-three days.
Can I claim unemployment benefit if I challenge the dismissal?+
Yes. Challenging it does not prevent you from claiming unemployment benefit, and it is advisable to apply within the fifteen working days following termination. What then happens to the benefit depends on how the proceedings end: if there is reinstatement with back pay, it is regularised.
What does it cost for you to handle the dismissal?+
The first assessment of the letter is free of charge. If the matter proceeds, the fee is fixed in writing before any action is taken, with a signed engagement letter. In dismissal matters a fixed component plus a percentage of what is recovered is usual.
If the letter is from this week, do not let it sit
The first assessment of the letter is free of charge. María Doménech handles employee-side employment law at the firm: dismissals, disability claims and unpaid wage claims.