Screenshots of a WhatsApp group, work emails forwarded to a personal account on the afternoon of the dismissal and a colleague’s promise to testify. That is what almost everyone brings to the office, and almost none of it decides a dismissal case in Spain. In a disciplinary dismissal the company has to prove the facts it wrote in the letter, you do not have to prove you are a good worker, and that is what article 105 of Law 36/2011 on the labour courts says. Forwarding company documents to yourself can also hand the employer a ground for sanction it did not have before, and the colleague willing to testify usually stops being willing when the summons arrives. What does carry weight is duller, the dismissal letter with the date you received it, the payslips for the last twelve months, the contract and any written communication from the company about the reason. With that, we calculate what you are owed and see whether the letter holds up.
Fair, unfair and null, what changes with each classification
Article 55 of the Spanish Workers’ Statute requires a disciplinary dismissal to be communicated in writing, stating the facts behind it and the effective date, and sets out the three possible classifications. It is fair («procedente») when the company proves in court the serious and culpable breach it alleged. It is unfair («improcedente») when it does not prove it or when the letter fails the formal requirements. It is null («nulo») when the motive is discrimination or a breach of fundamental rights, or when it affects one of the protected situations in article 55.5, among them pregnancy, birth and care leave, reduced working hours for childcare, the twelve months following return from birth leave and the status of victim of gender violence. In those cases the dismissal only survives if the company proves it was fair.
The consequences are those of article 56. A fair dismissal ends the contract with no severance and no back pay, though with unemployment benefit if you have the contributions. An unfair dismissal gives the company five days from notification of the judgment to choose between reinstating you or paying severance. A null dismissal requires immediate reinstatement with payment of all wages lost.
| Classification | What the worker obtains | Severance | Back pay (salarios de tramitación) |
|---|---|---|---|
| Fair (disciplinary) | Nothing, contract terminated | None | No |
| Fair (objective grounds, art. 53) | Contract terminated | 20 days per year, capped at 12 months’ salary | No |
| Unfair, company opts for severance | Severance payment | 33 days per year, capped at 24 months’ salary (45 days for service before 12 February 2012) | No |
| Unfair, company opts for reinstatement | Returns to the job | None | Yes, from dismissal to notification of the judgment |
| Null | Mandatory reinstatement | None (except damages for breach of fundamental rights) | Yes, always |
The table settles a very common doubt. Whether an unfair dismissal brings back pay or not does not depend on you, it depends on what the company chooses after the judgment, and since the 2012 reform most choose severance. The exception is article 56.4, which gives the choice to the worker when he or she is a workers’ legal representative or union delegate, with back pay in both cases.
Why so many dismissals end up unfair
The most frequent reason is that the letter does not withstand trial. The company can only defend at the hearing the facts it put in writing, it cannot add others, and it has to prove them with more than the supervisor’s word. A letter that speaks of «poor performance» or «loss of trust» without dates or specific facts breaches article 55.1 and usually ends in a finding of unfair dismissal on formal grounds, without the court needing to reach the merits.
In a dismissal on objective grounds under article 52 (economic, technical, organisational or production reasons, incapacity, failure to adapt), article 53 requires a letter stating the cause, severance of 20 days per year made available at the same moment and fifteen days’ notice. If the severance is not handed over, or is calculated with an error that is not excusable, the dismissal is unfair even if the cause was real. If the cause is not proven, the same. And when it is declared unfair and the company opts for severance, it deducts the 20 days it already paid.
A verbal dismissal, the «don’t come back tomorrow» with no paper, is unfair by definition, but you must prove it happened and on what date, because the deadline runs from there. A message from the manager telling you not to come in does serve that purpose. Collective dismissal under article 51 has its own challenge route through the workers’ representatives, although the individual worker keeps his own claim when the collective dismissal is not challenged or when what he disputes is his inclusion in it.
If you suspect that behind the dismissal there is a sick leave, a pregnancy or a previous complaint, the classification to seek is nullity, and the evidence is organised differently, on the basis of indications that shift the burden onto the company.
How much you receive, with figures
Severance for unfair dismissal is 33 days’ salary per year of service, prorating periods of less than a year by months, with a maximum of 24 months’ salary. For contracts predating 12 February 2012, the eleventh transitional provision of the Workers’ Statute keeps 45 days per year for service up to that date and 33 days for service after it, with a combined cap of 720 days, unless the older tranche alone exceeds that figure, in which case that tranche sets the maximum without going beyond 42 months’ salary.
The salary used is the daily salary, calculated on gross annual pay including extra payments, variable pay averaged over the last year and benefits in kind. If you work part time it is calculated on what you actually earn. Case law counts any fraction of a month as a full month.
An example. Gross annual salary of 30,000 euros with extra payments prorated, start date 1 March 2017, dismissal effective 15 September 2026. The daily salary is 82.19 euros (30,000 divided by 365). Length of service is nine years, six months and fifteen days, counted as nine years and seven months, that is, 115 months. Severance is 115 twelfths of 33 days, 316.25 days, multiplied by 82.19 euros, which gives 25,993 euros. The cap of 24 months’ salary would be 60,000 euros, so it does not come into play.
Same salary and same dismissal, but with a start date of 1 March 2005. The tranche up to 11 February 2012 is seven years counted at 45 days, 315 days. The later tranche is fourteen years and eight months at 33 days, 484 days. Together they make 799 days, above the 720-day cap, so severance stays at 720 days, 59,177 euros. That «rounding» of the last month and the split between tranches are where offers made at conciliation most often go wrong, always downwards.
Back pay and the company’s choice
When the judgment declares the dismissal unfair, the company has five days to choose. If it says nothing, article 56.3 treats it as having chosen reinstatement, with the back pay that entails. If it opts for severance, it pays the figure under article 56.1 and owes no back pay. If it opts for reinstatement, it owes wages from the date of dismissal to notification of the judgment, less anything you earned in other employment in that time. That is why a company that has taken a year to reach trial finds reinstatement far more expensive than severance, and why both figures should be calculated before sitting down at conciliation. When the company no longer exists or a return is unworkable, the law allows you to ask in the claim itself that the judge terminate the relationship with severance.
At the firm we run that calculation on day one, with both alternatives, because the figure the company offers at conciliation can only be judged by knowing what losing the case would cost it. It is part of what is described on the employment law page.
Twenty working days, and August counts
Article 59.3 of the Workers’ Statute and article 103 of Law 36/2011 set a deadline of twenty working days from the effective date of the dismissal to file the claim. It is a limitation period of the strict kind («caducidad»), which means it is neither interrupted nor restarted. It is counted from the day after the effective date, excluding Saturdays, Sundays and public holidays, and August is a working month for dismissal claims under article 43.4 of the same law. The conciliation request before the SMAC, which is compulsory before filing, suspends the deadline while the hearing takes place, and the count resumes when conciliation is attempted without agreement or when fifteen working days pass from filing without the hearing being held. Once the twenty days are gone, the dismissal is final even if it is the most unfair one in the province.
I signed the settlement, I signed the letter
Signing the dismissal letter with «received» only proves that you received it and on what date, and in fact it is advisable to sign it that way so the effective date cannot be disputed later. Signing «agreed» does not make the dismissal fair either, because the classification is made by a judge and you cannot waive in advance the right to challenge it, but it hands the company an argument it did not have. The correct thing is to sign with the date and the words «not agreed» («no conforme»).
Much the same applies to the settlement document, the «finiquito». Your signature releases the company only as to the items it settles, that is, untaken holidays, the proportional part of extra payments and the month’s salary. Case law denies it that effect when the document does not include dismissal severance, and also when the amount is so far from what is owed that it cannot be read as a compromise. Having received the settlement does not prevent you from challenging the dismissal within the twenty days. What does close the door is signing a document drafted as a termination agreement or a voluntary resignation, which is precisely what is sometimes placed on the table alongside the letter.
How long it takes and what happens to unemployment benefit meanwhile
Conciliation before the SMAC is held within weeks. The trial depends on the workload of the labour court you are assigned, and in A Coruña we are talking about months, not weeks, between claim and hearing. Judgment usually follows within weeks and the company then has its five days to choose.
In the meantime you do not have to go without income. Since the 2012 reform the dismissal letter alone proves the legal situation of unemployment, without waiting for conciliation or judgment, and the benefit is applied for within fifteen working days of the effective date. If the case ends in severance, you repay nothing. If it ends in reinstatement with back pay, the benefit received for that period is regularised, because you cannot receive wages and unemployment benefit for the same days. Accepting severance at conciliation does not cost you the benefit either.
If the company does not pay or has closed
A final judgment is enforced before the same labour court. If the company opted for reinstatement and fails to reinstate, the court terminates the relationship with severance plus wages accrued to that date. If it owes severance and does not pay, its assets are seized. If the company is insolvent or in insolvency proceedings, the Wage Guarantee Fund (FOGASA) under article 33 of the Workers’ Statute steps in, within its limits, which for severance are 30 days per year capped at one year’s salary and a daily salary that cannot exceed twice the national minimum wage, and for unpaid wages a maximum of 120 days with the same salary cap.
One detail decides a great deal in small companies. FOGASA answers for severance recognised in a judgment, court order, judicial conciliation or administrative decision, but not for amounts agreed in the record of administrative conciliation before the SMAC. Accepting a deferred sum there from a company with the shutters half down can leave you with no cover if it later fails to pay. I have dealt with how a business is closed without leaving debts behind from the other side, in closing your business at retirement without dragging in your personal assets, and with what is done when the debtor claims to have nothing, in collecting from a debtor with nothing.
Tax and the severance payment
Article 7.e of Law 35/2006 on personal income tax exempts dismissal severance up to the amount the Workers’ Statute sets as mandatory, with a limit of 180,000 euros. The exemption requires the unfairness to be acknowledged at conciliation before the SMAC or before the court. The same amount agreed in a private document in the company’s office is taxed in full as employment income, with withholding. Anything above the statutory severance, for instance a sum negotiated above the 33 days, is taxed, with a possible reduction for income generated over more than two years.
Severance above the statutory amount
Since 2024 there has been debate over whether 33 days is enough. The European Committee of Social Rights decided that year that Spain’s fixed severance does not comply with article 24 of the Revised European Social Charter, because it neither repairs the actual harm nor deters the employer. Some courts and regional high courts awarded additional sums, but the Supreme Court, in a plenary judgment of 19 December 2024, ruled that under current law judges cannot award severance above that of article 56, and that it falls to the legislator to change it. Absent reform, the figure you can claim today is the statutory one, and additional claims are reserved for cases with specific proven damage or a breach of fundamental rights.
What you can do today
Keep the original letter and note the day and the way you received it. Gather the payslips for the last twelve months, the contract and its extensions, and any written message from the company about the dismissal. Do not forward internal documents to your personal email or take files with you. Do not sign anything that says «agreed», «agreement» or «voluntary resignation», and if you are handed the settlement document, write «not agreed» next to your signature. Apply for unemployment benefit within the deadline. And do not call human resources to negotiate before you know what you are owed, because the first figure you put on the table will be the ceiling of the conversation.
When you need a lawyer
If you claim on your own, the specific risk is twofold. Letting the twenty working days lapse through a counting error, which happens more than it seems with August in the middle, or accepting at the SMAC a figure calculated by the company that leaves out extra payments, variable pay, the 45-day tranche or the back pay it would avoid with that signature. At the firm we act for the employee from the day of dismissal, review the letter and the settlement, calculate severance under both of the company’s alternatives and claim it at conciliation and at trial, or seek nullity where the indications support it. You can call +34 677 841 007 or write through the contact page, and for the rest see the employment law page. When you call, have to hand the dismissal letter, the exact date you received it, the last twelve payslips, the contract and, if it was given to you, the proposed settlement document. With that, the first conversation already ends with numbers.
Frequently asked questions
Can I receive unemployment benefit while I challenge the dismissal?
Yes. Since the 2012 reform the dismissal letter alone proves the legal situation of unemployment, and the benefit is applied for within fifteen working days of the effective date, without waiting for conciliation or trial. If the case ends in severance, you repay nothing. If it ends in reinstatement with back pay, the benefit received for that period is regularised because you cannot receive wages and unemployment benefit for the same days.
Do I get back pay if the company chooses to pay severance?
No. Since 2012, in an unfair dismissal back pay is only received if the company opts for reinstatement, or if the company fails to choose within five days and reinstatement follows by default. It is always received in a null dismissal and when the worker is a workers’ legal representative or union delegate, because in that case the choice is theirs.
What happens if the company does not pay the severance or has closed?
The judgment is enforced before the same court, which seizes assets or, if the company fails to reinstate, terminates the relationship with severance and accrued wages. If the company is insolvent or in insolvency proceedings, the Wage Guarantee Fund answers within its limits, 30 days per year capped at one year’s salary and a daily salary no higher than twice the national minimum wage. FOGASA does not cover severance agreed in the SMAC conciliation record, only sums recognised in a judgment, court order, judicial conciliation or administrative decision, and that shapes what to accept at conciliation from a company in difficulty.
Do I need a lawyer for the SMAC, and is it worth claiming?
At the SMAC a lawyer is not compulsory, but it is where the figure that decides the matter is accepted or rejected, and that figure has been calculated by the company. It is worth claiming when the letter is generic, when the company cannot prove the facts, when the offer leaves out extra payments, variable pay or the 45-day tranche, and always when there are indications of nullity. It is not worth litigating when the contract is very short and the company already offers at conciliation the full statutory severance, without deferral and with no indication whatsoever of nullity, nor when the twenty working days have passed, because the dismissal is already final. In the remaining cases, the gap between what is offered and what is owed usually pays for the claim many times over.
I was dismissed by a Spanish employer and have already left the country. Can I still claim, and do I have to come back for the conciliation or the hearing?
Yes, provided the claim is filed within twenty working days of the dismissal, a deadline that does not pause because you are abroad. Both the SMAC conciliation and the court hearing can be attended by a lawyer with a power of attorney, which you can grant before a Spanish consulate or a local notary with an apostille, so in most cases you do not need to travel; the court may exceptionally order your personal appearance for questioning, and we would tell you in advance if that arose. We act for dismissed workers living outside Spain and handle the whole procedure in English, from the calculation of severance to enforcement of the judgment.