Dismissal in Spain: the 20 working-day deadline to challenge it and the compensation you are entitled to

Receiving a dismissal letter opens a short and strict deadline in which to react. Unlike other employment claims, challenging a dismissal admits no delay: once the days the law grants have run out, the right to bring a claim is lost for good. Knowing that deadline, and what is at stake depending on the type of dismissal, is the first thing anyone who has just been dismissed needs to know.

What should you know about the 20 working-day deadline: forfeiture, not limitation?

The action to challenge a dismissal expires twenty working days after the dismissal takes effect, under article 59.3 of the Workers' Statute and article 103 of the Labour Courts Procedure Act (Ley Reguladora de la Jurisdicción Social). That this is a forfeiture period —not a limitation period— carries an important consequence: it is not interrupted by informal complaints, and once it has run, the right is extinguished. Working days are counted, excluding Saturdays, Sundays and public holidays. Days are counted as working days, excluding Saturdays, Sundays and public holidays at the seat of the competent court, under article 103.1 of the Spanish Labour Courts Procedure Act (Ley Reguladora de la Jurisdicción Social). Unlike most labour-law deadlines, this one keeps running in August: article 43.4 of the same Act expressly excludes dismissal actions from the general judicial recess that applies in August and between 24 December and 6 January, so a dismissal notified in late July can see its 20 working days run out in the middle of August. Letting the deadline pass, even where the dismissal was plainly unfair, forecloses any claim for compensation or reinstatement.

Does filing for conciliation stop the deadline running?

Before filing suit it is generally mandatory to attempt preliminary conciliation before the competent administrative body. Filing the conciliation application suspends the running of the deadline, which resumes the day after conciliation is attempted or once fifteen working days have passed from filing without it taking place (article 65.1 of the Spanish Labour Courts Procedure Act, Ley Reguladora de la Jurisdicción Social). Filing the conciliation application (papeleta de conciliación) suspends the running of the forfeiture period, which resumes after the conciliation hearing or once fifteen days have passed without one being held. This step is not a mere formality: it is the first stage of the procedure and the moment at which many employers put forward a settlement. Filing on time is essential in order not to lose the claim.

Types of dismissal and their compensation

How a dismissal is qualified determines its consequences. A fair dismissal is one in which the alleged cause is proved; the employee is not entitled to compensation beyond that inherent in the type of dismissal itself. An unfair dismissal is one that is not justified or that fails to meet the formal requirements; at the employer's election, it triggers either reinstatement with payment of the wages accrued during the proceedings, or compensation of thirty-three days' salary per year of service, capped at twenty-four monthly payments. For contracts signed before 12 February 2012, that earlier period is compensated at forty-five days per year and the cap becomes 720 days' salary, unless the pre-2012 tranche alone already exceeds it, subject to an absolute maximum of forty-two monthly payments (eleventh transitional provision of the Workers' Statute). The employer must exercise this option within 5 days of notification of the judgment (article 56.1 of the Workers' Statute); where reinstatement is chosen, the wages accrued during the proceedings cover the pay the employee did not receive between the dismissal date and notification of the judgment, or until the employee found another job if that happened earlier (article 56.2). If judgment is handed down more than 90 working days after the claim was filed, the employer may claim the excess from the State (article 56.5). A null and void dismissal, reserved for infringements of fundamental rights or of specially protected situations, obliges the employer to reinstate the employee and to pay the wages the employee failed to receive.

The form of the dismissal matters

Article 55 of the Workers' Statute requires that a disciplinary dismissal be communicated in writing, setting out the facts that ground it and the effective date. Formal defects —a vague letter, insufficient specification of the facts— may lead to a finding of unfair dismissal regardless of whether cause existed. For that reason, both the employer and the employee should pay close attention to the content of the letter: it is the piece on which the proceedings will turn.

How we help you challenge a dismissal at RCM Legal

There are two costly mistakes: letting the twenty working-day deadline slip in reliance on informal negotiations that do not suspend it, and accepting the qualification and the amount the employer offers without having verified whether the dismissal was in fact fair or whether the amount is the one that applies. In dismissal matters, time works against those who fail to react.

At RCM Legal we analyse your dismissal, calculate the compensation you are entitled to and conduct the claim from the conciliation application through to trial where necessary. As employment lawyers in Murcia, if you have been dismissed, tell us about your case as soon as possible —the clock is running— and we will tell you what you can claim.