If I am dismissed for missing work, am I entitled to unemployment benefits?

All employees have the right to unilaterally terminate their contract with a company on their own initiative. To do so, all they have to do is to give 15 calendar days' notice. They can also execute their decision without complying with this requirement, but assuming that their action will have financial and reputational consequences.

However, there is a problem with voluntary redundancy: it does not entitle them to unemployment benefits. This is very important for those who leave for personal reasons and not because they have found a new job. This is the reason why some people decide to force their dismissal for disciplinary reasons. In this article we want to emphasise this situation.

Can you be dismissed for not coming to work?

First of all, it is worth remembering that objective dismissal for absenteeism was abolished in 2020. However, this does not mean that a company has to put up with a worker's continued and unjustified absenteeism. In this type of situation, a disciplinary dismissal can be carried out, for which no notice or compensation is required.

When we speak of unjustified absenteeism, we refer to absenteeism that is not motivated by the exercise of agreed holidays, paid legal leave or sick leave, for example. In such cases, the dismissal may be considered unfair or even null and void. But if there is no justification, the situation is different.

If I am fired from my job, can I collect unemployment benefits?

At this point, we must remember that a disciplinary dismissal removes the right to receive severance pay. However, the employer is obliged to pay the employee the severance pay and to provide him/her with the company certificate that will allow him/her to receive the benefit, which should not be confused with unemployment benefit. In other words, if I do not go to work and I am dismissed, I am entitled to unemployment benefit.
This is basically because what entitles you to unemployment benefit are the contributions that you have made throughout your employment with the company. For this, the only requirements are those established by the SEPE in general. They are as follows:

• Not have reached the ordinary retirement age and be over 16 years of age.
• Have paid contributions for 360 days or more in the six years prior to dismissal.
• Be affiliated to a Social Security scheme that pays unemployment contributions. The self-employed, although they may be entitled to unemployment benefit, do not fall into this category.
• Register as a jobseeker with the SEPE.

Is the employer obliged to give notice to the employee?

The Supreme Court ruled on the matter last November 2024. In its ruling, Spain's highest judicial body specified that, before undertaking the disciplinary dismissal of an employee for unjustified absenteeism, it is not obliged to give 15 days' notice, but it is obliged to grant a hearing to the employee.

At that hearing, the employee will have to justify why he/she has been absent from work. If the employee is unable to do so, the company has the power to issue the letter of disciplinary dismissal at that very moment. In other words, it can force the employee to leave his or her job immediately.

If I miss 3 days of work, can I be dismissed?

The Workers' Statute only refers to “repeated and unjustified absence from work” as a reason for dismissal, without giving an exact figure. However, reference is often made to three days as the threshold for dismissal.

The reason is simple. When a worker is ill, he can be absent from work for three days without having to provide a sick leave report. However, from the fourth day onwards, this document issued by the general practitioner is compulsory. Therefore, companies can start counting as unjustified absences from that moment onwards if they do not receive proof of the employee's inability to attend work.

Forced dismissal is not always a good idea

Mainly because the employer is not obliged to dismiss the employee for disciplinary reasons in case of unjustified absenteeism. However, he does have the power to impose sanctions of various kinds. For example, days without employment and pay or claims for damages for wilful misconduct. 

Therefore, he also has the power to cut short the employee's plans and bring him into such an untenable situation that he either returns to his job or has to apply for voluntary redundancy. This, of course, can be quite unpleasant for all parties involved.

When can I apply for unemployment benefits?

Immediately. As we have said, if you are dismissed, you are entitled to unemployment benefits, regardless of whether the alleged causes are objective or disciplinary. Therefore, the day after the company terminates the employment relationship, you can go to the SEPE office and apply for this contributory benefit.

Moreover, claiming unemployment does not affect the right to appeal against the dismissal and to take legal action against the employer, if you believe that the absences are indeed justified and can be proven.

In this case, it is best to have the services of an expert dismissal lawyer to provide personalised advice throughout the process. In our firm we have a large number of experts in the field who can help you to preserve your rights and to face the process with every chance of success.

Contact us as soon as possible and find out for yourself.