Disciplinary dismissal, the conditions for it to comply with the Law
Disciplinary dismissal is one of the ways in which the employment relationship is terminated in Spain, as a result of serious misconduct on the part of the employee. This type of dismissal must be based on specific grounds and must follow a specific procedure in order to be valid.
Grounds for Disciplinary Dismissal
The causes that may justify disciplinary dismissal are set out in Article 54 of the Workers’ Statute. Among the main causes are
- Repeated and unjustified absences in attendance or punctuality: Repeated absences in attendance or unpunctuality, without a valid justification, may be grounds for dismissal.
- Indiscipline or disobedience at work: Failure to comply with the employer’s orders or internal company rules may result in disciplinary dismissal.
- Verbal or physical offences against the employer, co-workers or family members living with them: Any act of physical or verbal aggression is sufficient grounds for this type of dismissal.
- Breach of contractual good faith and breach of trust: Acting against the interests of the company, such as disclosure of trade secrets or unfair competition, are examples of such conduct.
- Continuous and voluntary decrease in work performance: A deliberate decrease in the employee’s performance in relation to his or her usual performance may be grounds for dismissal.
- Habitual drunkenness or drug addiction: If they adversely affect work performance or endanger the safety of the company.
- Harassment at work, sexual harassment or harassment based on sex: This is considered a serious cause justifying disciplinary dismissal.
Procedure for Disciplinary Dismissal
For disciplinary dismissal to be valid, the employer must follow a specific procedure:
- Written notification: The employer must notify the worker of the dismissal by means of a written letter in which the reasons for the dismissal are explained in a clear and detailed manner. This letter must include the specific facts imputed to the worker and the date on which the dismissal took place.
- Time limit for appealing: The worker has 20 working days to challenge the dismissal before the labour courts. During this period, he/she can file a lawsuit if he/she considers that the dismissal is not justified or that the proper procedure has not been followed.
- Possibility of a prior hearing: In the event that the dismissed worker is a legal representative of the workers or a trade union delegate, a contradictory file must be carried out in which the interested party and the other members of the workers’ representation are heard.
Qualification of Disciplinary Dismissal
Once the dismissal has been challenged, it can be classified in three different ways by the judicial authority:
- Fair dismissal: If it is proven that the causes alleged by the employer are true and constitute a serious and culpable offence, the dismissal is considered fair and the worker is not entitled to compensation or wages for processing.
- Unfair dismissal: If the alleged causes are not accredited or the established procedure has not been followed, the dismissal is declared unfair. In this case, the employer must choose between reinstatement of the worker with payment of the wages lost (processing wages) or compensation of 33 days’ wages per year worked, with a maximum of 24 monthly payments.
- Null and void dismissal: Dismissal is considered null and void if it is carried out in violation of fundamental rights and public freedoms, such as discrimination on grounds of sex, race, sexual orientation, etc. The dismissal of workers on leave due to pregnancy, maternity, paternity or breastfeeding is also null and void. In this case, the worker must be reinstated and receive the lost wages.
Consequences of Disciplinary Dismissal
Disciplinary dismissal has a number of important consequences for both parties to the employment relationship:
- For the worker: dismissal implies the immediate termination of the employment relationship without the right to compensation or notice, unless it is declared unfair or null and void. In addition, the worker may be entitled to unemployment benefit if he/she meets the established requirements.
- For the employer: If the dismissal is declared unfair or null and void, the employer may face significant costs, such as the payment of processing fees and compensation. It may also be subject to sanctions if it is proven that the dismissal violated fundamental rights.
Recommendations for employers and workers
It is essential that both employers and employees are well informed about their rights and obligations in relation to disciplinary dismissal:
- For employers: Before proceeding with disciplinary dismissal, it is advisable to gather sufficient evidence to support the alleged causes and to rigorously follow the procedure laid down by law. Consult a legal expert to avoid future problems.
- For workers: When receiving a letter of disciplinary dismissal, it is important to act quickly, assessing the possibility of challenging the dismissal if it is considered unfair. Seeking specialised legal advice can be key to defending labour rights.
Disciplinary dismissal in Spain is a mechanism that protects companies against serious employee misconduct, but it is also subject to a strict legal framework to guarantee the rights of employees. At Asesoría Orihuela Costa we offer you the support you need to resolve any legal employment situation.
