Objective dismissal: what is it, causes and how can I claim it?

This is a termination of the employment contract for specific reasons. These may be economic, when the company suffers losses or reduces its profits. They can also be due to staff adjustments or the introduction of new technologies, which can replace certain manual jobs.

How should the employer proceed and how should the employee respond? The employer must inform the employee in writing of the reason for his or her dismissal. In addition, it must give a copy of the written notice to the employee's representatives. Here the employee has no option to negotiate, and the only way to challenge the dismissal is to go to court.

¿Qué es un despido objetivo?

Basically, it is a dismissal, either individual or collective, in which the company decides to dispense with the services of its employees for specific or supervening causes. However, in order to carry out this procedure, the company must pay the corresponding compensation to the employee.

In contrast to disciplinary dismissal, in this case the employee is not at fault. He is not the cause of the termination of his contract, but a consequence of internal changes in the company. As a consequence, the employee is entitled to compensation from the company. In the Workers' Statute, the causes and effects of this dismissal are set out in detail.

Most common causes of this type of dismissal

The causes of objective dismissal can be of many different kinds. All of them are included in the Workers' Statute, specifically in article 52, entitled "Termination of contract for objective causes". Let us see what these causes are:

Inaptitude of the employee

An objective dismissal may occur due to supervening ineptitude after the worker has been hired. And this dismissal may not be invoked because of the ineptitude that existed prior to the completion of the probationary period.

Deficient adaptation of the worker to technical modifications

This refers to changes in the employee's job. In this case, the company must offer the employee a training course to achieve this adaptation. And the company may not dismiss the employee until at least two months have elapsed since the implementation of the modification or the completion of the adaptation training.

Unforeseen causes within the company

A good example is economic causes, when the company makes a negative balance or incurs losses. There may also be technical causes, when new working methods are introduced, or organisational or production causes.

Absence from work

Absences from work can have a very negative effect on the employee. If he/she has justified absences, but intermittent and numerous in a short period of time. Absences due to legal strikes, accidents at work, maternity and breastfeeding, leaves of absence, gender violence... or other legally motivated absences are not counted.

Indefinite-term contracts through non-profit entities.

This can also happen when this situation arises, i.e. when the employee is hired to carry out specific public plans or programmes. As these are financed by the public administrations through external income.

Effects of objective dismissals

Whatever the reason for dismissal, the company must inform the employee in writing and pay him/her the compensation, which will be 20 days per year worked. If the objective dismissal is for economic reasons and the company does not have the financial capacity to pay this compensation, it must state this in the written notice.

Why should a copy of the written notice be given to the legal representatives? Simply so that they have a record and knowledge of the episode. And on the days of notice, the worker is entitled by law to a stipulated leave of 6 hours per week to look for a new job.

No one can ever be dismissed in this way if it is for one of the causes of discrimination set out in the Spanish Constitution. If you decide to go to court, it will be up to the courts to classify the termination of the contract as unfair, fair or null and void. 

What must appear in a letter of objective dismissal?o?

The letter must be legally valid and must meet a series of requirements. Once the employee has received the letter, he or she must sign it. However, it is important to clearly state the reason for the objective dismissal and to know what information the letter must contain:

• Basic details of the employee, so that there is no doubt as to who the employee is addressed to
• Dates of termination of contract and dismissal
• Cause of dismissal, which should be clearly detailed.

How should the company give it to the worker? There are two ways. The first is directly by hand. If the worker refuses to accept it, there must be witnesses to record this refusal. And this episode exempts the company from the obligation to hand it over again. The second way is by burofax or telegram.

How long is the notice period for objective dismissal?

It all depends on whether the company wishes to dismiss the employee immediately or not. The letter must always be given to the employee 15 days before the dismissal becomes effective. However, if the company decides not to wait for the employee to complete the 15-day period, it will still have to pay the employee for the 15 days that he/she was entitled to work.

In addition, it must also pay compensation for objective dismissal, as mentioned above. All these are the legal obligations that the company must formalise, but what happens if it does not comply with any of them?

• If the dismissal is not made in writing, it is considered unfair dismissal.
• If the employee receives less than the amount to which he/she is entitled, he/she must make a claim.
• If the reason for dismissal is not clearly stated, the dismissal is also considered unfair.

How to claim this type of dismissal?

The worker can rest assured that if he/she does not agree with the dismissal or if it seems unfair or unjustified, he/she can always challenge it in court. You can start to claim as soon as the employer gives you the letter, in fact, it is recommended that you do not wait for the days to pass, the sooner the better!

It is essential to take advantage of the 20 working days available from receipt of the letter to complain. Remember that non-working days are Saturdays, Sundays and public holidays. If there is finally no agreement, the next step is to take legal action. This can lead to unfair, null and void or fair dismissal, depending on the case.

This is first mediated through a conciliation procedure. This process is necessary before going to court, and in many cases even obligatory. In these situations, it is recommended to leave it in the hands of a lawyer. What happens if nothing is achieved? Then, yes, it is time to go to court. And if there are several dismissed workers, it is necessary to proceed with collective dismissal instead of individual dismissal.

The best option is always to consult a lawyer

If at any time you suffer a dismissal of this kind, you can turn to the law to defend your rights. And who better than a professional in this field! If you think you may be in this situation, you can request more information through an online consultation. A law firm is the right place to seek help.

Sometimes, due to ignorance of deadlines or laws, we miss out on unique opportunities. A job is a right we all have and we must protect it when we feel we have lost it in an unclear or unjustified way. For more details on dismissals, please contact us for a consultation.