Main differences between invalid, unfair and fair dismissal

At some point in your life, you have probably had to deal with redundancy. And, if you have not, it is a good idea to be aware of what the current legislation covers in this regard. That is why we are going to dedicate this article to explaining the different types of dismissal that exist and the main differences between them. As specialist dismissal lawyers, we want to advise you.

Null and void dismissal

By their very definition, null and void dismissals are not very common. In order for one to occur, it is necessary for the employer to dismiss a worker in reference to conduct expressly prohibited by the Spanish Constitution or, failing that, when there is a violation of any public freedom or fundamental right of the worker.

Main cases of null dismissal

Most of the invalid dismissals in Spain occur as a consequence of these facts:
 

1. Maternity: all dismissals of workers that occur during maternity leave, as well as when there is a risk of pregnancy or breastfeeding, are null and void. They are also null and void if they occur as a result of illnesses caused by childbirth or during adoption processes. In short, if the reason has to do with any aspect related to gestation and birth, it will receive this qualification. 

2. Gender-based violence: only those cases in which dismissals occur due to reduced working hours, geographical mobility or change of centre to which female workers in this situation are entitled are covered. 

3. Care of family members: dismissal will also be null and void if it occurs when the worker is on leave to care for children or family members.

Consequences

A null dismissal obviously has consequences. The first of these is immediate reinstatement in a position identical to the one you held previously. In addition, the employer must pay you all the wages not paid to you as a result of the dismissal. In the event that the worker, while the claim was being resolved, received unemployment benefits, these must be paid by the employer, who will deduct them from the wages to be paid. This period, as could not be otherwise, will also be counted as a contribution period, so the employer will have to pay the corresponding Social Security contributions for the period from the time the dismissal took place until the worker was reinstated.

Unfair dismissal

An unfair dismissal is a dismissal in which the employer cannot prove that the formal requirements for disciplinary or fair dismissal have been met. The judge responsible for determining whether or not this has occurred is the Social Court that corresponds to the worker's place of residence, although it is always a matter of conciliation between the two parties.

What are the consequences of unfair dismissal?

Once the Social Court has ruled that the dismissal is unfair, the employer has two options to act. Specifically, the employer has to choose one within 5 days from the moment of notification. These are: 

1. Immediate reinstatement of the employee: this will entail the payment of the processing wages, i.e. those that the employee would have received had he/she continued to work in the company from the time of dismissal until the time of notification of the judgement or the time when he/she found another job. 

2. Compensation: in the case of unfair dismissal, labour legislation provides for the payment of compensation of 33 days' salary for each year worked in the company. Periods of less than one year must be prorated on a monthly basis. The maximum is 24 monthly payments. If you opt for this option, the employment contract will be terminated and, with it, your relationship with the worker. However, in addition to this compensation, the employee is also entitled to receive the aforementioned processing wages. 

At this point, we must make a small emphasis. The aforementioned is only applicable to those contracts signed and formalised after the publication in the Official State Gazette of Royal Decree Law 3/2012, that is to say, of what is better known as the Labour Reform. This occurred on 12 February 2012. 

Contracts signed prior to this date, at least with regard to the period of time between its entry into force and the publication of the aforementioned legislative text, are subject to other conditions regarding unfair dismissal. For example, for the calculation of compensation, this period of time will be calculated at the rate of 45 days' salary per year worked with a maximum of 42 monthly payments. 

All that remains to be said, with regard to unfair dismissals, is that those involving workers linked to their company through a relationship considered to be of a special nature must be subject, in terms of compensation, to what is specified in the specific regulatory rule. 

Fair or disciplinary dismissal

A fair or disciplinary dismissal is understood to be one in which the employer is able to prove the causes that were alleged at the time of dismissal. Before 2012, when the Labour Reform came into force, this type of dismissal was very rare. However, it included all the cases that could give rise to its execution, which has meant that, today, it is the most common. This is also known as dismissal for objective causes.

The consequences of fair dismissal

In the event of dismissal for an objective reason, which may be, for example, a readjustment of the workforce or a situation of economic losses within the company, the employee is entitled to receive a compensation of 20 days per year worked with a maximum of 12 monthly payments. There are no exceptions specifying that a higher amount is eligible. 

In this respect, the employer is obliged to pay such compensation at the same time as the notice of dismissal is given. Current legislation only provides for one exception in this regard. If the dismissal is due to an adverse economic situation, sustained over time and demonstrable, it may be delayed until the moment when the decision to terminate the employment is final, i.e. the moment when there is a court ruling confirming that the dismissal is of this type or when the employee is registered with the Social Security. 

Conclusions
We hope that, from now on, you have understood the differences between a null dismissal, an unfair dismissal and a fair dismissal. As you will have seen, the rights of the employee are very different depending on the type of dismissal. Being aware of your rights and obligations will be very useful to avoid surprises if you have to face this unpleasant situation, contact us for more information.