Dismissal of a domestic worker

The dismissal of a domestic worker must be carried out with care, respecting the worker's rights and complying with the employer's legal obligations.

This article provides a comprehensive guide to the key aspects to be taken into account during this process, with a particular focus on severance pay and the new regulations on dismissal from September 2022.

Types of dismissal

In Spain there are two types of dismissal within the relationship between a company and a worker: disciplinary and objective;however, objective dismissal is not applicable when it comes to a contractual relationship between a family and a domestic worker.

In 2022, the option of dismissal for withdrawal is eliminated, and from then on, the termination of a contract can only occur for a justified and duly accredited cause in which it is demonstrated that the conditions (economic or otherwise) of the family have changed sufficiently to justify a dismissal.

There are therefore two options: disciplinary dismissal and dismissal for cause.

Disciplinary dismissal

Disciplinary dismissal can take effect when there is serious misconduct or non-compliance on the part of the domestic worker.

Disciplinary dismissal may be deemed unfair, fair or null and void, and if the dismissal is found to be unfair, a severance payment will be payable. If, on the other hand, the dismissal is found to be fair by a court, there will be no possibility of compensation for the domestic worker, but there will be an obligation to pay the employer's severance pay and the domestic worker will be entitled to receive it.

In order for the disciplinary dismissal to be legally enforceable, the employer must:

• Communicate the dismissal in writing, not verbally.
• The written notice must list the grounds for disciplinary dismissal as precisely as possible.
• If there are witnesses, their statements must be included in the written notice.
• As a last requirement, the date on which the dismissal of the domestic worker becomes effective must be included.

Grounds for disciplinary dismissal

Under Spanish law, there are specific justified grounds for dismissal of a domestic worker, including the following:

• Theft or any other act of dishonesty committed by the domestic worker.
• Failure to attend work or habitual unjustified lateness to work.
• Inaccuracy or inadequate performance of the tasks entrusted to them.
• Harassment, mistreatment or abuse of family members.
• Violation of contractual obligations.
• Breach of confidentiality obligations.
• Financial irregularities related to the domestic worker's duties.
• Negligence or lack of diligence.

It is important to bear in mind that arbitrary dismissals without just cause may entitle the employee to compensation and potentially result in legal repercussions for the employer. Before proceeding with a disciplinary dismissal, it is advisable to seek the advice of an employment lawyer.

Dismissal for just cause

With the elimination of dismissal for termination in 2022, the termination of a contract can only occur for a justified and duly accredited cause; these reasons can be a drop in the household's income, an increase in expenses due to unforeseen circumstances, or an important change in the family's needs, or a behaviour of the domestic worker that justifies a loss of confidence in her.

This change in the regulation has meant an important advance in the rights of domestic workers, as a justification is now required for dismissal and it cannot be carried out arbitrarily. In addition, a mandatory 20 days' notice is established if the provision of services exceeds the duration of one year, and seven days' notice in other cases.

Other circumstances of dismissal or termination of contract

There are other circumstances, in addition to the types of dismissal mentioned above, which may lead to the termination of a domestic worker's contract:

• If the employee fails to pass the probationary period, the contract may be terminated.
• The death of the employer or the employer's declaration of permanent disability may also lead to the termination of the employment contract.
• In addition, if the employee decides to voluntarily resign from her position or if both parties reach an agreement to terminate the contract, the contract will also be terminated.
• Finally, the contract may also be terminated simply because it is coming to an end and it is not decided to renew it.

Dismissal process and notice periods

When terminating the employment contract of a domestic worker, the employer must comply with specific procedural requirements; these include:

• Notify the employee in writing of the termination, stating the reasons for dismissal.
• Give the household employee a notice period ranging from 7 to 20 days, depending on seniority.
• Pay all outstanding wages, including accrued holidays or leave not taken.
• Return all personal belongings belonging to the domestic worker.

In addition:

• In case of disciplinary dismissal, the offences committed must be specified.

Failure to comply with these procedural requirements may result in legal consequences or financial penalties for the employer.

Termination

The severance pay is the amount that the employer must pay to the worker at the end of the employment relationship, and includes:

• the proportional part of special payments
• unused holiday pay
• and, if applicable, severance pay.

It is mandatory regardless of the type of dismissal issued.

Indemnification

Compensation for dismissal in the case of domestic workers depends on the type of dismissal. In the case of unfair disciplinary dismissal, the compensation is 20 days' salary per year worked, with a limit of 12 monthly payments. In the case of dismissal for just cause, the compensation is 12 days' salary per year worked, with a limit of 6 monthly payments.

Changes in the 2022 regulation

Royal Decree-Law 16/2022 of 6 September has brought about a significant change in the regulation of dismissal of domestic workers:

• This decree eliminates dismissal on the grounds of dismissal and establishes that the dismissal of a domestic worker can only be made for a justified and accredited cause.
• In addition, this decree has established the right to unemployment for domestic workers, which did not exist before as no contributions were paid for it.

In short, the dismissal of a domestic worker is a process that must be carried out with care and respect for the worker's rights. With the new 2022 regulation, greater protections have been put in place for domestic workers, including the right to severance pay and unemployment.

It is important that both employers and domestic workers are aware of these changes and ensure that they comply with all relevant legal obligations.