Disciplinary dismissal in Spain does not require prior notice, but an employer must notify the worker through a corresponding letter of dismissal, which states the facts prompting the dismissal and the effective date of the dismissal. Collective agreements may establish additional formal requirements.
Under certain collective agreements, or when the worker is an employee representative, it will be necessary to initiate disciplinary proceedings prior to a disciplinary dismissal, so that the worker can defend against the claims brought against him or her.
Level of dismissal
A dismissal is considered:
- Fair: when the company demonstrates the alleged infringement in writing. The consequence of a fair dismissal is the termination of the employment relationship without entitlement to compensation.
- Unfair: when there is no proven infringement or when the dismissal letter fails to state the effective date and the reasons for the dismissal.
- Null: a dismissal will be declared null if the dismissal is motivated by any of the discriminatory causes prohibited by the Constitution or Law, or if any of the worker’s fundamental rights or public liberties are breached. The consequence of a null dismissal is the immediate reinstatement of the worker, with payment of salary arrears.
Causes of a disciplinary dismissal
When workers breach their labour obligations, the company may sanction them. According to the seriousness of the misconduct, the infringements may be minor, serious, or severe. The penalty for serious and severe breaches must be communicated in writing to the worker stating the reasons and the effective date.
Article 54 of the Workers’ Statute recognizes acceptable reasons for disciplinary dismissal:
- Repetitive and unexcused breaches of absence or punctuality from work
- Indiscipline or disobedience, failure to obey work orders, clashes with the employer, refusing to carry out duties
- Verbal or physical offences to the employer or individuals working in the company
- Breach of confidence at work based on the breach of obligations, as well as a transgression of contractual good faith, fraud, disloyalty to the company, or negligence
- A continuous and voluntary decrease in the effective performance of normal and agreed to work
- Habitual drunkenness or drug addiction, in the event that there is a detrimental impact on the labour activity
- Harassment by reason of race or ethnic origin, religion or beliefs, disability, age or sexual orientation, and sexual harassment or gender harassment towards the employer or other persons working at the enterprise.
This article is not considered as legal advice