The disciplinary dismissal in Spain

Disciplinary dismissals in Spain reckon a serious and culpable breach by the worker. Following the Workers’ Statute, are considered breaches of contracts:

  • Repeated and unjustified absences from work or punctuality
  • Indiscipline or disobedience at work
  • Verbal or physical offences against the employer or persons working in the company or family members living with them
  • Breach of the contractual duty of good faith, as well as abuse of trust in performing work
  • The continued and voluntary decrease in the normal or agreed upon work performance
  • Habitual drunkenness or drug addiction if it harms work
  • Harassment on the grounds of racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual or gender-based harassment of the employer or persons working in the company.

The qualification of the dismissal after it has been challenged will determine whether compensation is associated with it. The classification can be:

Appropriate disciplinary dismissal

The company has complied with the required formalities and accredits the worker’s non-compliance. Here, the company’s decision is valid, and the worker will not be entitled to compensation. But he/she will be entitled to the corresponding unemployment benefits from social security provided he meets the requirements.

Inappropriate disciplinary dismissal

The company has not complied with the formal requirements, or the alleged non-compliance has not been proven. Here, the worker is entitled to compensation for inappropriate dismissal of 45/44 days of salary per year of service (respecting the legal maximums).

Null disciplinary dismissal

The dismissal has been made on discriminatory grounds, violates a fundamental right and public freedoms of the worker or temporarily coincides with pregnancy, maternity, paternity, adoption or fostering. Here, the company will be obliged to readmit the worker and pay the corresponding processing fees.

Formalization of the disciplinary

The company must notify the disciplinary dismissal to the employee in writing, stating the facts on its basis and the date on which it will take effect.

Collective agreements may establish additional formal requirements for dismissal. For example, the obligation to process, before firing, a contradictory sanctioning file, giving the employee the possibility to make allegations and present evidence in his defence. Or the notification of the dismissal decision to the workers’ representatives, set in Article 64 (4) (c) of the Workers’ Statute (W.S.) and which obliges the company to inform the workers’ representatives of all the sanctions imposed for severe misbehaviour. Non-compliance with these additional formalities by the company may result in an inappropriate dismissal for reasons of form.

If you need additional legal advice on disciplinary dismissal in Spain

This article is not considered legal advice

Mariscal & Abogados

Mariscal & Abogados is an international and multidisciplinary law firm with proven experience in diverse areas of the Law. Our working languages are English, German, French and Spanish. For any further enquiries please Contact us