Unfair dismissal in Spain: rights and remedies
Employment law in Spain: English guides
An unfair dismissal in Spain (despido improcedente) is a dismissal whose justification or legally required procedure does not withstand scrutiny. It is a Spanish legal classification, not a direct application of UK or US employment law. The letter, evidence, applicable agreement and statutory protections all matter.
When can a dismissal be unfair?
The employer may fail to establish the alleged facts, the necessary seriousness or culpability in a disciplinary case, or the economic, organisational or other statutory ground in an objective case. Failure to comply with required formalities can also lead to unfairness. Not every defect has the same result: for example, missing notice in an objective dismissal does not by itself make it unfair.
Review the letter alongside the facts, rather than assuming that a particular label guarantees compensation. The employer must prove the grounds relied upon within the procedural rules. The applicable collective agreement may impose further safeguards.
Reinstatement or compensation: who chooses?
Under Article 56 of the Workers’ Statute, the employer normally has five days from notification of the judgment to choose reinstatement or statutory compensation. If no choice is made, reinstatement is presumed. Where the dismissed person is a statutory employee representative or trade-union delegate, the choice belongs to that person, subject to the legal rules.
Reinstatement normally entails back pay (salarios de tramitación), with the adjustments required by law. An ordinary employee receiving compensation instead of reinstatement does not automatically receive back pay as well. Representatives have specific back-pay rights whichever option they choose. If reinstatement is not carried out properly, judicial enforcement may be necessary.
How statutory compensation is calculated
The ordinary rule is 33 days of salary per year of service, capped at 24 months’ salary, prorating incomplete years by months. For service before 12 February 2012, the transitional calculation uses 45 days per year for the earlier period and 33 for the later period. The combined limit is normally 720 days’ salary. If the pre-reform period alone exceeds that, it sets the limit, subject to an overall maximum of 42 months. The entire service period is not calculated at 45 days merely because the contract started before 2012.
The salary basis must consider the relevant salary supplements, extra payments, commissions, bonuses, variable remuneration and benefits in kind, not just basic monthly pay. Genuine expense reimbursements are different. Service may involve successive contracts or a business transfer. See severance pay and the final settlement for the calculation checklist.
Unfair is not the same as void
A dismissal that infringes fundamental rights, is discriminatory or falls within a specific statutory protection may be void. The normal consequence is reinstatement and back pay, rather than an automatic substitution with 33 days’ compensation. Dismissal during pregnancy illustrates why this distinction matters.
Additional compensation for an established fundamental-rights violation has its own basis and requirements. Do not assume that every unfair dismissal attracts moral damages, or that an administrative fine is money payable to the employee.
How to challenge the dismissal
A dismissal challenge normally has a strict 20-working-day deadline, counted from the day after the effective termination date, excluding Saturdays, Sundays and applicable public holidays. Do not assume that August stops this deadline. Filing the required conciliation request suspends the countdown: it resumes on the day after conciliation is attempted or after fifteen working days without it taking place, with the time remaining, not a fresh twenty days. Private negotiations, a complaint to HR or an inspection complaint do not by themselves preserve the dismissal deadline.
Conciliation and, where necessary, an employment-court claim must identify the relevant facts and remedies. If an employer offers to recognise unfairness in an agreement, examine the sum, salary basis, service, payment terms and scope of any waiver. An offer is not the same as cleared payment.
What to bring to a case review
Bring the dismissal letter, contract, payslips and variable-pay documents, payment evidence, the collective agreement and communications about the stated reason. Mention any protected circumstances or previous complaints. Our Spanish unfair-dismissal page (in Spanish) provides related information. For immediate steps, use what to do after dismissal.
Legal sources
Workers’ Statute, Articles 55–56 and transitional provision 11 (Spanish legislation) and Employment Jurisdiction Act, dismissal procedure (Spanish legislation).
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