Legal keys to null and void dismissal and compensation

Void dismissal is one that occurs with an infringement of the Legal System of such gravity that its sanction is to be without effect. It is a figure reserved for very particular cases, in which the causes established in the Workers' Statute concur, discrimination or deprivation of fundamental rights or public freedoms.

It is important to understand that the nullity of the dismissal is a legal qualification. In other words, it is up to the Judge to determine whether or not a dismissal is null. This means that the nullity of a dismissal will only be determined in those cases in which the termination decision of the company is successfully challenged. 

In these situations, the affected person will have the right to immediately re-enter their job. In addition, the company must pay you the so-called processing salaries, which are what you would have received if you continued providing services. And on some occasions, you can claim compensation.

Let us study in detail all the legal keys to null dismissal, how to obtain the declaration of nullity of the dismissal and what will be its legal effects, including compensation.

What is a void dismissal?

As we have explained in other articles, we can classify dismissals according to their causes or effects. We can causally distinguish between objective and disciplinary dismissals. The characteristics of one and the other are that they are justified by causes beyond the control of the parties or by a breach of the dismissed person, respectively.

As the labor lawyers of Forcam Abogados comment, if a dismissal is contested, the result of its challenge will be a legal qualification. Such qualification will be of origin, inadmissibility or nullity, and will determine the effects of the dismissal.

Termination decisions that conform formally and materially to the Legal System are proceeding. Therefore, being legal, its effects will be consolidated after the qualification of origin.

For their part, those dismissals that do not comply with the law are inadmissible. As a consequence, the company must either reverse them or compensate the affected person.

The last possible qualification is that of nullity, reserved for cases in which the seriousness of the breach of the Legal System by the company is such that the dismissal remains without effect.

When are we facing a null dismissal?

Dismissal based on a discriminatory cause prohibited in the Constitution is null and void. Let us remember that our fundamental text prohibits discrimination based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance. 

In this sense, the dismissals of people on long-term sick leave are particularly controversial. Dismissal of a person on leave is possible, as long as the motive is not discriminatory. However, the CJEU considers that a temporary disability leave can be assimilated to a disability (and, therefore, make the dismissal capable of being classified as null for discriminatory) when:

1.- The leave is of long duration. 

2.- And the injury is such that it is disabling for the affected person.

Dismissal that occurs in violation of fundamental rights and public freedoms of the affected person is also void. In this case, it should be noted that many disciplinary dismissals are justified by means of evidence that undermines the dignity or privacy of the workforce, reasons that could lead to the dismissal, even if based on a serious breach of contract, to be declared null. 

Specific cases of invalidity

To the general causes mentioned above, the Workers' Statute adds certain specific causes of nullity:

1.- The dismissal of workers during the periods of suspension of the contract due to birth, adoption, guardianship for the purpose of adoption, foster care, risk during pregnancy or risk during natural lactation or due to diseases caused by pregnancy, childbirth or breastfeeding is null. natural or notified in such a way that the notice ends within these periods. 

2.- Likewise, it is the dismissal of people who have requested such permits or permits for the hospitalization of a newborn or for the care of minors or people with disabilities who require care.

3.- It is also the case of the working person who has reincorporated after finishing his leave for birth, adoption, custody for the purpose of adoption or foster care, provided that no more than twelve months have elapsed since the causal event.

4.- Finally, the dismissal of pregnant workers or victims of gender violence is null.

How is the nullity of the dismissal declared?

To obtain a declaration of nullity, the dismissal will have to be challenged. It is up to the social courts to qualify the termination decisions of the company.

The judge will check if any of the circumstances of special protection that we have mentioned above concur. In addition, you must verify that such protected circumstance has not been the reason for the dismissal.

In other words, if the company succeeds in proving that the cause of the dismissal is not the one that is protected (maternity, discrimination, deprivation of constitutional rights and freedoms…), the dismissal could be classified as appropriate. This happened, for example, in a well-known case in which the CJEU endorsed the dismissal of a pregnant worker in an ERE.

What will be the effects of the declaration of nullity? 

The main effects of the declaration of nullity will be the invalidation of the termination decision. In other words, the fired person will have the right to immediately re-enter his job. In addition, the company must pay you the processing salaries, which are those that you would have received in the event that you had not been fired.

On the other hand, the Regulatory Law of Social Jurisdiction admits in its art. 183 that, in the event that the fundamental rights and public freedoms of the worker have been violated, the Judge must rule on the amount of compensation that may correspond. Note that this compensation does not have to be appropriate in all cases, and that it is not compatible, where appropriate, with that required in criminal proceedings.

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