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How to get compensation in a disciplinary dismissal?

Labor Law
How to get compensation in a disciplinary dismissal?

In Spain there are different types of termination of the employment relationship between the employer and the worker. Among them is disciplinary dismissal, a type of dismissal that entails the resolution of the employment relationship between employee and employer and which is configured as a sanction to the former for having committed some serious misconduct. 

This means that disciplinary dismissal is a labor sanction that has important effects and consequences for the worker. Perhaps the most important is that this type of dismissal does not allow you to receive compensation. So, what does disciplinary dismissal consist of? Is it never allowed to claim the corresponding compensation? In what cases can an employee be disciplinarily dismissed?

What is and what does disciplinary dismissal consist of? 

Disciplinary dismissal is a type of dismissal through which the employment relationship that unites the company or employer with the worker is put to an end. In order to consider a dismissal as disciplinary, two circumstances must occur:

-First of all, there is non-compliance on the part of the worker.

-Secondly, the non-compliance committed by the worker is serious and culpable.

Article 54 of the Workers' Statute establishes the causes that may give rise to the disciplinary dismissal of a worker. They are the following:

  • Repeated and unjustified lack of attendance or punctuality.
  • Repeated disobedience at work.
  • Trust abuse.
  • Infringement of contractual good faith.
  • Noticeable, sustained over time and voluntary reduction in normal work performance.
  • Go to work while intoxicated or having consumed psychotropic substances.
  • Harassment of co-workers or the employer based on their age, race, religion, ideology, disability or sexual orientation.
  • Sexual harassment of co-workers or employer.

Is the dismissal letter mandatory in case of disciplinary dismissal?

In the case of disciplinary dismissal, the company does not have the obligation to notify the worker that he has been dismissed in advance, since labor legislation allows the employer to notify the dismissed worker on the same day that the dismissal takes place. However, and although there is no obligation to notify the worker in advance, it is necessary for the employer to determine the reasons that led to the disciplinary dismissal.

Despite the above, there is an obligation to notify the end of the employment relationship to the employee in writing through a dismissal letter, as established in article 55 of the Workers' Statute. This document must reflect the facts that motivated the dismissal and the date from which it will take effect.

What requirements will the dismissal letter have to meet?

  • Facts that motivate the dismissal. It must be written in a clear and concrete manner, with an explanation of the reasons that led to the termination of the employment relationship.
  • Date from which the dismissal will be effective. It is not necessary to notify the dismissed worker in advance, it being sufficient that the date is the same as the day on which the dismissal is communicated.
  • Obligations not fulfilled by the worker that have led to the disciplinary dismissal.

What are the deadlines to challenge disciplinary dismissal?

In accordance with articles 103 and following of the Law Regulating Social Jurisdiction in Spain, the labor procedural deadlines for challenging a disciplinary dismissal are regulated. 

The worker has only a period of 20 business days to challenge his dismissal, to file the corresponding lawsuit, or to initiate a labor negotiation procedure with the company. 

Taking into account the deadline to challenge the dismissal, which is very short, it is highly recommended that, when faced with a dismissal, you go to a lawyer specializing in disciplinary dismissals.

The dismissal claim that is presented must reflect some data about the contractual relationship that has united the worker and the employer, such as the seniority of the former in the company or the professional category to which he belongs, as well as any other data that could be relevant to determine the origin of the disciplinary dismissal.

On the other hand, the worker must provide the date on which the disciplinary dismissal took effect, in addition to providing the dismissal letter.

What compensation can be claimed in the event of disciplinary dismissal? 

Taking into account the legal keys to these dismissals, the worker will not have the right to receive compensation of any kind, but can receive it with the help of a lawyer specializing in dismissals, if he or she can prove that the dismissal has not been carried out in accordance with labor regulations.

In the event that the employee has committed a serious offense, the disciplinary dismissal will be configured as a labor sanction, so there would be no right to receive compensation. However, the worker will receive the settlement.

The above only applies when the disciplinary dismissal is appropriate, that is, when it has been demonstrated that the causes underlying the termination of the employment relationship comply with labor legislation. This means that, in the event of inadmissibility, unjustified disciplinary dismissal will give rise to compensation.

So, in the event of a disciplinary dismissal, does the worker have the right to receive compensation? 

In the event of the disciplinary dismissal being unfair, that is, when there is no sufficiently justified reason for the end of the employment relationship, the worker will have the right to receive compensation for unfair dismissal. Thus, the dismissed employee may receive compensation of 33 days per year worked with a maximum of 24 monthly payments for those who were hired on or after February 12, 2012.

However, for workers who signed the contract before February 11, 2012, the compensation will be 45 days per year worked with a maximum of 42 monthly payments until that date. As of February 12, 2012, they will receive compensation of 33 days per year worked with a maximum of 24 monthly payments. 

If you have received a dismissal letter and it specifies that it is disciplinary and unjustified, you must challenge the dismissal, through lawyers who are experts in disciplinary dismissals, in order to obtain compensation and have the right to unemployment. This means that the disciplinary dismissed worker may receive a large compensation and also receive unemployment benefits.

If you have been fired in Spain, contact specialist lawyers

Contact Forcam Lawyers, and our team of lawyers who are experts in dismissals will study your specific case. We advise national and international workers who have been disciplinary and unjustifiably dismissed. We fight for your rights to obtain high compensation and protect your interests. 

In our office we have offices in Barcelona, ​​Madrid and Reus we offer advice on dismissals throughout Spain.