Null and void dismissal. What it is and consequences in a null dismissal.

In law, nullity is defined as the lack of force, value or effect of an act for not having been performed in accordance with the laws in force. This gives us an important clue as to what a null dismissal is and what its consequences are. In any case, we are going to dedicate this article to explain it in detail.

What is a null dismissal?

According to Article 55.5 of the Workers' Statute, a null dismissal is any unilateral termination of an employment contract by the employer that infringes on the public liberties and fundamental rights of the employee. This means that no employer may dismiss an employee for reasons of race, religion, sex or opinion.

However, proving the nullity of a dismissal is not easy. Generally, the employer invokes a disciplinary or objective cause to terminate the employment relationship. Subsequently, the employee must challenge the decision before the corresponding labor court. Only a judge, after the pertinent judicial declarations and the presentation of evidence, can rule that it is null and void.

Causes of null and void dismissal

We already know that the nullity of a dismissal can only occur when the termination of the contract is motivated by an attack against the fundamental rights and public liberties of the employee. However, the laws are much more precise in this regard. These are the cases contemplated:

• Maternity. A woman cannot be fired because of her pregnancy. Not even if she has not informed her employer of her pregnancy. The same applies to breastfeeding and illnesses resulting from childbirth or pregnancy itself. Foster care, adoption and paternity have the same level of protection.
• Leave of absence for child care. Female employees cannot be dismissed if they are on leave of absence for the care of children under 3 years of age. This also applies to workers who are on reduced working hours to care for children under 12 years of age or dependent family members.
• Victims of gender violence. They cannot be dismissed for exercising their right to the reorganization of the working day or its reduction. Nor for exercising their right to effective judicial protection and comprehensive social assistance.
• Reintegration. Once the periods of leave for adoption, foster care or maternity have ended, they may not be dismissed for 12 months.
• Guarantee of indemnity. An employee may not suffer reprisals in the form of dismissal for claiming his or her rights. This would be the case, for example, of a termination of contract for filing a complaint with the Labor Inspectorate or for testifying in court in favor of a colleague.

However, in order for the dismissal to be considered null and void, it is necessary for the employee to prove that any of the aforementioned facts was the reason for the termination of the contract. If the employer provides evidence that the causes alleged in the dismissal letter are real, the judge will consider the dismissal to be valid.

Invalid dismissal and the consequences associated with it

The nullity of the dismissal has an immediate consequence: the employer will be obliged to reinstate the employee in his/her former position. In this sense, the judge will indicate the period within which his decision must be made effective, which will not exceed 3 working days in any case.

But what happens if the employer does not comply with the decision? In this case, the employee must notify the court so that the judge can take the appropriate steps. Normally, a new term of 5 days will be given and a payment equivalent to 6 months of salary will be required.

Compensation for null and void dismissal

When a dismissal is considered null and void, legally it is as if it had never existed. Therefore, the employee is not entitled to receive compensation as in cases of unfair dismissal or dismissal for objective causes.

However, after the judgment of nullity, the employee can file another lawsuit before the company and claim payment of the damages that the dismissal has caused him/her. These may be material (for example, if not receiving his salary has prevented him from paying the mortgage or other credits) or moral (if the situation has generated anxiety, depression or other psychological problems).

It is a different matter if, as a result of the dismissal, the employee received a certain amount of severance pay. Obviously, since the termination has never existed at the legal level, he/she will have to pay it back to the employer. It is usual to reach an agreement and that only the difference between the compensation and the processing wages is paid.

Wages for processing

As we said a moment ago, a null dismissal has never really existed. Therefore, the employer is obliged to pay the employee the amount owed in wages from the date on which the termination of the contract came into effect until the day of publication of the annulment judgment.

This is called processing wages, for whose collection there are only two exceptions:

• The employee gets another job during the judicial process. In this case, the employer may deduct the amount of salary that the employee has received in his new company.
• The worker has received unemployment benefits during the time he has been laid off. The employer is obliged to pay the employee the difference between the amount of the unemployment benefit and the employee's salary. In addition, he will have to pay to the Social Security what his employee has been paid for it.

In addition, the employer will be obliged to register the employee and pay his or her social security contributions for the entire time he or she has been dismissed.

I have suffered a null dismissal and I don't want to return

This is not a common scenario, since the request for nullity is usually accompanied by a desire to return to the company. However, it can happen. In this case, once reinstatement occurs, the worker has the right to refuse, in which case he/she will be able to apply for unemployment benefits as long as he/she meets the requirements. However, he/she will not receive compensation.

This is the case unless reinstatement is impossible, for example, because the company has ceased its activity. In this case, the worker will receive, in addition to the processing wages, a compensation equivalent to that contemplated for unfair dismissal. The same applies if the employee has been the victim of harassment or violence in the workplace.

In short, this is all you need to know about null dismissal. We hope to have clarified all your doubts about it.