Disciplinary dismissal: Guidance, employee rights and options

An employer may decide to terminate the employment relationship with an employee when the latter commits serious breaches of contract. This is known as disciplinary dismissal and is currently the most common type of dismissal in Spain due to its mainly subjective nature. This article is intended to serve as a guide to your rights and options in this respect.

Causes for disciplinary dismissal

It is true that, as mentioned above, this type of dismissal is subjective in nature. However, this does not mean that it is open to opinion. It must be motivated by compelling reasons and can be challenged by the employee if he/she believes it is unfair. In fact, if he is successful in his claim, the employer will have to pay him severance pay or, failing that, reinstate him in the company under the same conditions as before.

Having said that, the grounds referred to above are typified in article 54 of the Workers' Statute. They are as follows:

• Desobediencia al empresario y/o indisciplina.
• Falta reiterada e injustificada de puntualidad o asistencia.
• Abuso de confianza.
• Faltas a la buena fe contractual.
• Ofensas a compañeros, al empresario o a familiares de cualquiera de ellos. No importa que sean verbales o físicas.
• Disminución voluntaria y continuada del rendimiento laboral.
• Acudir al trabajo en estado de embriaguez o bajo los efectos de drogas de forma habitual, siempre que afecte negativamente al desempeño del trabajo.
• Acoso de cualquier tipo a los compañeros o al empresario.

There are three nuances to what we have just said. The first is that collective agreements can (and normally do) contain lists of very serious misconduct capable of degenerating into disciplinary dismissal. The other is that both "breach of trust" and "breach of contractual good faith" can be considered as real disaster boxes in which the employer can allege any reason in order to benefit from the advantages of this type of dismissal.

The third one refers to the "voluntary and continuous decrease in work performance". This is a ground that has given rise to more than one bogus disciplinary dismissal. For example, imagine an employer who purchases a certain piece of machinery to carry out the work of a certain number of employees. But instead of relocating them within the company or dismissing them unfairly, he resorts to this formula to save on compensation.

According to ILO (International Labour Organisation) Convention 158, to which Spain is a signatory, the mere withdrawal of the employer is not sufficient to terminate an employment relationship with a worker. That is why, unless the employer is able to demonstrate a comparative drop in performance, he usually ends up having to pay compensation.

What is the procedure for dismissal for serious misconduct or disciplinary dismissal?

This type of dismissal must be notified in writing to the employee. It is not valid to do it orally. Moreover, prior notice is not necessary for disciplinary dismissal, so it is effective from the moment the employee is informed of the dismissal. 

Subsequently, the employer is obliged to notify and give a hearing to the trade union to which he/she is affiliated or, failing that, to the legal representative of the workers in the company. On this basis, the dismissal will have to be classified in one way or another:

• Fair disciplinary dismissal. In order for this to occur, the employer must prove beyond any doubt that the employee has breached the contract. In addition, he will not have to compensate him, although he will have to pay him the corresponding severance pay for disciplinary dismissal (holidays, proportional part of extra pay, etc.). You will also have to give him/her the company certificate so that he/she can access unemployment benefits.
• Unjustified disciplinary dismissal. In this case, the employer cannot prove the breach by the worker and, therefore, is obliged to pay the corresponding severance pay or, failing that, reinstate the worker. For the latter, the employer must pay the corresponding processing wages.
• Null and void disciplinary dismissal. If this occurs, the employer is obliged to reinstate the worker and pay him/her the wages for processing the dismissal.

Is it possible to challenge a disciplinary dismissal?

Of course it is. In fact, the process for doing so is set out in articles 103 et seq. of the Law Regulating Social Jurisdiction. These articles specify that the worker has 20 working days from the moment the dismissal is formalised to lodge a challenge.

This challenge must be made by means of the presentation of the conciliation paper. This must contain the following information:

• Length of service in the company.
• Professional category.
• Salary.
• Place of work.
• Any other contractual aspect of interest.
• Date on which the dismissal took place.
• Reasons given by the employer to justify the dismissal.
• Possible trade union membership.
• Status of legal representative, if any.

The employer may refuse to accept the conciliation letter, in which case the employee will have to file a lawsuit. At this point, it is up to the employer to prove the truthfulness of the reasons given in his letter of dismissal. Any that have not been properly stated will not be accepted.

What can happen during the trial? On the one hand, it is possible that the employer proves that the reasons given are true. In such a case, the judge will then classify the dismissal as justified. If he cannot do so, or if the evidence is not sufficiently relevant, he will consider it unfair. As mentioned above, this will result in the payment of compensation with disciplinary dismissal or the reinstatement of the worker.

Is it usual for the employer to reinstate the worker?

Not very. It should be borne in mind that the employer can appeal against the judgement. Moreover, if he chooses to do so, he would have the possibility of repeating his decision to terminate the employment relationship with the worker after the 7-day period has elapsed.

Is it possible to collect unemployment benefits in the event of disciplinary dismissal?

Yes, in fact, unless the dismissal is considered null and void or unjustified by a judge and the employer chooses to reinstate the employee, the worker always remains unemployed. Obviously, in order to receive the corresponding unemployment benefit, the employee must be entitled to it on the basis of his or her contribution periods. The employer is obliged to provide the employee with a company certificate that entitles him or her to this benefit.

In short, being dismissed for disciplinary reasons is not a desirable situation for any employee. In fact, as it is a unilateral decision by the employer, it often leads to lengthy and complex legal proceedings. Therefore, if you are faced with one, do not hesitate to contact a lawyer specialised in this area. He or she will provide you with the advice you need to face the procedure with all the guarantees and defend your rights properly.