You have just been told you are dismissed. You are holding a letter and you do not know whether what is being done to you is legal or not. This situation, unfortunately common, creates enormous uncertainty: am I entitled to more compensation? Can they dismiss me like this? What do I do now?
Unfair dismissal is one of the most searched concepts in the employment field, and rightly so. Millions of employees face this situation every year without knowing exactly what it means or what their rights are.
In this article we explain clearly and directly what an unfair dismissal is, how it differs from other types of dismissal, what compensation you are entitled to and what steps you should take if you believe your company has acted unfairly.
What exactly is an unfair dismissal?
An unfair dismissal is one that the employer cannot sufficiently justify before the law. Either because the grounds alleged are not real, or because the formal requirements set out in the Workers’ Statute have not been met.
Put another way: the company dismisses you, but it cannot prove that it had sufficient cause to do so, or it has done so without following the correct procedure.
This has direct consequences for you as an employee: you are entitled to greater compensation than in a fair dismissal, and in some cases, even to be reinstated in your post.
Difference between fair, unfair and null dismissal
Not all dismissals are the same. It is essential to distinguish between these three types:
- Fair dismissal: The company has justified cause and has carried it out correctly. If it is a fair objective dismissal, the compensation is 20 days per year worked, up to a maximum of 12 months’ pay; if it is a fair disciplinary dismissal, there is no compensation.
- Unfair dismissal: There is no sufficient cause or the requirements have not been met. The compensation is 33 days per year worked (with a limit of 24 months’ pay).
- Null dismissal: This occurs when the dismissal breaches fundamental rights, such as dismissing a pregnant woman or someone on sick leave in certain circumstances. In this case, reinstatement is mandatory.
When is a dismissal declared unfair?
A judge —or the employer itself, at the conciliation hearing— can declare a dismissal unfair in a number of situations.
Formal grounds: errors in the procedure
The Workers’ Statute requires every dismissal to meet certain formal requirements. If these are not met, the dismissal can be declared unfair even if the company had substantive reasons:
- Failing to provide a dismissal letter in writing with a date and a specific cause.
- Failing to state the facts motivating the dismissal in sufficient detail.
- Failing to give notice when this is mandatory (for example, in objective dismissals).
- Failing to make the compensation available to the employee at the time of the objective dismissal.
A simple formal error can turn a justified dismissal into an unfair one. That is why it is so important to review the dismissal letter with an employment solicitor.
Substantive grounds: lack of real justification
Besides formal errors, the dismissal is unfair when the grounds alleged are not true or are not sufficiently proven:
- Poor performance is alleged, but there is no objective data to prove it.
- Absenteeism is claimed, but the absences were justified.
- A disciplinary cause is invoked that is not real or is time-barred.
- Economic or organisational grounds are relied on that cannot be proven.
Compensation for unfair dismissal: how much are you entitled to?
This is the question that worries employees the most. Compensation for unfair dismissal is calculated as follows:
33 days’ salary per year worked, up to a maximum of 24 months’ pay.
But there is an important nuance: for contracts signed before 12 February 2012, 45 days per year worked apply up to that date, and 33 days from then on. This can make a significant difference if you have been with the company for many years.
How is the daily salary calculated?
The calculation is made on the gross daily salary, including extraordinary payments and other fixed remuneration items. To calculate it:
1. Add up your gross annual salary (including extra payments and other fixed supplements).
2. Divide by 365 days.
3. Multiply by the corresponding days (33 per year worked).
For example: if you earn 30,000 € gross per year and you have been with the company for 5 years, your compensation would be approximately 13,500 € (30,000 / 365 × 33 × 5).
It is advisable to have an employment solicitor review the calculation, since many companies make errors —sometimes deliberate— when computing the base salary.
“At BBM Abogados we defend the interests of individuals and businesses in Santander and Cantabria with a close, rigorous and fully transparent approach. If you have doubts about your case, we help you see it clearly.”
What do you have to do if you think your dismissal is unfair?
Acting quickly is essential, since the time limits in employment law are very short.
Step 1: Review the dismissal letter
Read the letter carefully. Check that it includes the date and a specific cause and that it is signed by the company. Any ambiguity may work in your favour.
Step 2: Consult an employment solicitor
Before signing anything, go to a specialist. Many companies ask the employee to sign documents that may harm them. A solicitor will tell you exactly what position you are in and what you can claim.
Step 3: File the conciliation request
In Spain, before going to court it is mandatory to go through a conciliation hearing before the SMAC (Mediation, Arbitration and Conciliation Service). The deadline to file it is 20 working days from the date of dismissal. This deadline cannot be extended.
Step 4: Agreement or court claim
At the conciliation, the company may acknowledge the unfairness and pay the compensation. If there is no agreement, the matter goes to the Employment Tribunal, where a judge will decide.
Unfair dismissal in Santander: how we help you at BBM Abogados
If you are in Santander or Cantabria and you have been dismissed, at BBM Abogados we have been advising employees and companies on all kinds of employment disputes for more than 30 years.
Our team of employment solicitors in Santander will help you to:
- Analyse your dismissal letter and determine whether it is unfair or null.
- Correctly calculate the compensation you are entitled to.
- Handle the conciliation request within the legal deadlines.
- Represent you before the Employment Tribunal if the case goes to trial.
We act swiftly, transparently and with a personal touch. We know that losing your job is a difficult situation, and our goal is for you to obtain the best possible result in the shortest possible time.
Contact us today for an initial consultation about your dismissal. The sooner you act, the better your options.
Conclusion: do not accept an unfair dismissal without getting informed first
Unfair dismissal is an everyday reality in the Spanish labour market. Many companies rely on the employee not knowing their rights and accepting conditions below what they are entitled to.
If you have been dismissed and you have doubts about whether the grounds are real or whether the procedure was correct, do not sign anything without first consulting a specialist. The time limits are short, but there is enough time to act properly if you do so as soon as possible.
At BBM Abogados we are here to help you. Call us or write to us and tell us your case. Your first consultation is with no obligation.
Frequently asked questions
How long do I have to claim an unfair dismissal?
You have 20 working days from the date of dismissal to file the conciliation request. This deadline cannot be extended, so it is essential to act quickly. If you let that deadline pass, you will lose the right to claim.
Can I reject the compensation the company offers me?
Yes. If you believe the compensation offered is incorrect or insufficient, you can reject it and start a claim process. You are not obliged to accept what the company proposes at first.
Does unfair dismissal count towards unemployment benefit?
Yes. Regardless of the type of dismissal, you are entitled to apply for unemployment benefit if you meet the contribution requirements set by the SEPE (at least 360 days contributed in the last 6 years).
What happens if the company acknowledges the unfair dismissal at the conciliation?
If the company acknowledges the unfairness at the conciliation hearing and pays the corresponding compensation (33 days per year, up to 24 months’ pay), the process ends there. There is no need to go to court and you receive the money sooner.
Can I be reinstated instead of receiving the compensation?
In most cases, faced with an unfair dismissal the company can choose between reinstating you or paying you the compensation. However, if you are a trade union representative or staff delegate, it is you who has the option of choosing between reinstatement and compensation.
Is an unfair dismissal the same as a null dismissal?
No. An unfair dismissal means there is no sufficient cause or there are formal errors, and it entails the payment of compensation. A null dismissal occurs when fundamental rights are breached (such as dismissing a pregnant woman), and in that case reinstatement is mandatory and the salaries not received must be paid.