False disciplinary dismissal or agreed dismissal

In order to understand what a false disciplinary dismissal is, it is necessary to take into account what a disciplinary dismissal is. Specifically, it is a way for the employer to unilaterally terminate the employment relationship with an employee. In order for this to occur, the employee must have committed one or more offences classified as very serious by the Workers' Statute or by the collective bargaining agreement for his or her sector.

So what is a fake disciplinary dismissal?

False disciplinary dismissal, also known as agreed dismissal between the employer and the employee, is a legal fraud that brings benefits to both parties.

On the one hand, the employer can terminate the contract unilaterally, without the need to give 15 days' notice to the employee and without the obligation to pay compensation for objective dismissal, which generally amounts to 20 days per year worked. 

On the other hand, the worker has the advantage of being able to directly access unemployment benefits as long as he/she meets the requirements. Specifically, we are talking about:

• Provide proof of the company certificate and letter of dismissal.
• Have paid contributions for 360 days or more since your last contract.
• Be registered with the General Social Security Regime.
• Register as a job seeker with the SEPE (Public Employment Service).

According to the Workers' Statute (the collective agreements of each sector or company can go much further), there are four causes for disciplinary dismissal. They are: breach of trust, breach of contractual good faith and voluntary and continuous decrease in job performance. Evidently, the lukewarmness with which they are defined means that they can easily be agreed upon by both parties in the dismissal letter.

In what situations does false disciplinary dismissal usually occur?

First of all, we must say that disciplinary dismissal on false accusations became very popular in the period between 2008 and 2012 due to the economic crisis. At that time, before the publication of the Labour Reform, dismissal was very expensive in Spain. In fact, severance payments could reach 45 days' salary per year worked with a maximum of 42 monthly payments.

For this reason, faced with the economic difficulties of companies, many employers opted for the option of agreeing a dismissal with the worker. They saved the cost of compensation and the workers continued to be paid without the need to be immersed in a legal process that, in many cases, led to the suspension of payments and years in court.

However, it is not only the employer who has profited over the years from this legal fraud. There are many workers who seek to agree to leave a company when they do not really want to continue working there. 

This is mainly due to the fact that when a worker requests voluntary redundancy and terminates the contract on his own account, he loses the right to receive severance pay and unemployment benefits. This leads to negotiations with the employer, who often sees this as a good way out, fearing that the employee will no longer be able to carry out his or her tasks properly and will become a burden. This is known as fraudulent sick leave.

What is the public administration doing to prevent and detect cases of fraudulent disciplinary dismissal?

The last Labour Reform took this into consideration and introduced several measures to control this legal fraud. Specifically, the SEPE was given the power to request labour inspections in order to validate the alleged causes and to urge the worker to challenge the disciplinary dismissal before the corresponding Social Court within 20 working days of it becoming official.

The problem, on the one hand, is that it is very difficult to prove that the situations that have motivated the disciplinary dismissal with false accusations have not really existed since both parties have agreed. On the other hand, even if the employee is urged to contest the dismissal, he/she is under no obligation to do so if he/she does not want to. The situation is therefore very complex.

Possible consequences for the employer and the employee

In the case of employers, we must turn to the Royal Legislative Decree 5/2000, i.e. the Law on Offences and Penalties in the Social Order. It clearly specifies that false disciplinary dismissal is a very serious offence (Article 23.c).

As far as workers are concerned, Article 26.1 of the same law also makes it a very serious offence to simulate dismissal in order to collect unemployment benefits. In both cases, Social Security is empowered, through administrative channels, to request the reimbursement of unduly obtained benefits.

But there is more. We cannot forget that fraud is classified as a criminal offence under the Criminal Code. Therefore, by agreeing to leave a company by means of disciplinary dismissal, both the employer and the employee are committing a crime against Social Security (article 307 ter). Depending on the seriousness of the offence, it can lead to the following sentences:

• Imprisonment of between 6 and 36 months.
• Financial fine to be determined according to the amount defrauded.
• Loss of entitlement to subsidies, tax incentives and social security employment benefits for a period of 3 to 6 years.

In short, false disciplinary dismissal is still common in our country, although not as common as it was a decade ago. Through it, both the worker and the employer seek to obtain a certain economic benefit, although what they often do not think about is that they are committing a crime against Social Security in the Criminal Code. For this reason, and taking into account the serious consequences that it can entail, it is worth thinking twice.