Specialists in Labour Proceedings
Our Employment Lawyers, specialised in Employment Law, will be able to offer you our professional services in your defence before the Courts in any labour proceedings you may have to face.
If you wish, in addition to being attended in our law firm in Madrid, we offer you the possibility of our employment lawyers attending you in our offices in Pozuelo de Alarcón and Majadahonda.
Dismissal Procedure
- The employee may lodge a complaint against the dismissal within twenty working days of the date on which it occurred. This period shall expire for all effects and purposes.
- If a claim for dismissal is brought against a person who has been erroneously attributed the status of employer, and it is accredited in the trial that a third party was the employer, the worker may bring a new claim against the latter, without the limitation period starting to run until the moment when it is established who the employer is.
Claims for dismissal, in addition to the general requirements, must contain the following:
- Place of work; professional category; particular characteristics, if any, of the work performed prior to the dismissal; salary, time and form of payment and seniority of the dismissed person.
- Date of effectiveness of the dismissal and the manner in which it occurred and the facts alleged by the employer.
- Whether the worker holds, or has held in the year prior to the dismissal, the status of legal or trade union representative of the workers.
- If the worker is a member of a trade union, in the event that he/she alleges that the dismissal was unfair because it was carried out without the prior hearing of the trade union delegates, if any.
Procedure for contesting penalties
The worker may challenge the sanction imposed on him/her by means of a lawsuit that must be filed within the period indicated in art. 103 of this law.
In proceedings challenging sanctions for serious or very serious misconduct against workers who hold the status of legal or trade union representative, the defendant must provide the legally established contradictory file. It shall be the responsibility of the employer to prove the reality of the facts imputed to the worker, and their entity, and no other grounds for opposing the claim may be admitted other than those alleged at the time to justify the sanction. The allegations, evidence and conclusions must be made by the parties in the order established for disciplinary dismissals.
Holiday Procedure
The procedure for the individual or plural setting of the date for taking leave shall be governed by the following rules:
- When the date is specified in a collective agreement, or by agreement between the employer and the workers' representatives, or has been set unilaterally by the employer, the worker shall have a period of twenty days, from the date on which he/she becomes aware of said date, to file a claim in the Labour Court.
- If the date for taking the leave has not been set, the application must be filed at least two months before the date of the leave intended by the employee.
- If, once the proceedings have begun, the dates of leave are set in accordance with the provisions of article 38 TR LET, the continuation of the proceedings shall not be interrupted.
- When the object of the debate concerns preferences attributed to certain workers, these must also be sued.
Professional Classification
- The application initiating this process shall be accompanied by a report issued by the works council or, where appropriate, by the personnel delegates. In the event that these bodies have not issued the report within fifteen days, it shall be sufficient for the claimant to prove that he/she has requested it.
- In the decision admitting the claim, a report shall be requested from the Labour and Social Security Inspectorate, sending it a copy of the claim and accompanying documents. The report shall deal with the facts invoked and the concurrent circumstances relating to the claimant's activity and must be issued within fifteen days.
- No appeal may be lodged against the ruling.
- The proceedings shall be initiated by the employees affected by the employer's decision, which must be filed within twenty working days of the notification of the decision.
- When the subject matter of the debate concerns preferences attributed to certain employees, these must also be sued. The representatives of the employees' representatives must also be sued when, in the case of transfers or modifications of a collective nature, the measure has their agreement.
- If, once the proceedings have been initiated, a collective action is brought against the employer's decision, the proceedings shall be suspended until the collective action is resolved. However, the agreement between the employer and the workers' legal representatives once the proceedings have been initiated shall not interrupt the continuation of the proceedings.
- The procedure shall be urgent and preferential treatment shall be given. The hearing shall be scheduled within five days of the date of admission of the application. The judgement, which shall not be subject to appeal except in the circumstances and subject to the conditions laid down in Article 189(1)(b), and which shall be immediately enforceable, shall be delivered within five days.
- The judgment shall declare the employer's decision to be justified or unjustified, depending on whether or not the reasons invoked by the employer have been proved in respect of the workers concerned. The judgement declaring the measure unjustified shall recognise the worker's right to be reinstated in his or her previous working conditions. The decision adopted in fraud of the law, circumventing the rules established for collective dismissals in the last paragraph, section 1, art. 40 TR LET, and in the last paragraph, section 3, art. 41 of the same legal text, shall be declared null and void.
- When the employer does not proceed to reintegrate the worker in his/her previous working conditions or does so in an irregular manner, the worker may request the enforcement of the ruling before the Labour Court and the termination of the contract on the grounds of the provisions of art. 50.1 c) TR LET in accordance with the provisions of arts. 277, 278 and 279 of this law.
- If the judgement declares the nullity of the company measure, its execution shall be carried out in its own terms, unless the worker instigates the execution provided for in the previous section. In any case, the time limits established therein shall apply.
1. The application shall be made in writing and shall contain the following general requirements:
- The designation of the body before which the application is lodged.
- The designation of the plaintiff, stating the number of the national identity card, and of those other interested parties who must be called to the process and their addresses, indicating the name and surname of the natural persons and the company name of the legal persons. If the claim is directed against a group without a legal personality, the names of those who appear as organisers, directors or managers of the group and their addresses must be stated.
- A clear and specific enumeration of the facts on which the claim is based and of all those which, according to substantive legislation, are essential to resolve the issues raised. In no case may facts other than those alleged in conciliation or in the prior administrative complaint be alleged, unless they have arisen subsequent to the substantiation of the former.
- The corresponding pleading, in terms appropriate to the content of the claim.
- If the plaintiff litigates on his own behalf, he shall designate an address for service in the locality where the Court or Tribunal resides, at which all proceedings to be heard with him shall be conducted.
- Date and signature.
2. The plaintiff shall file as many copies of the claim and accompanying documents as there are defendants and other interested parties in the proceedings, as well as for the Public Prosecutor's Office, in those cases in which it is legally required to intervene.
The court clerk shall warn the party of any defects or omissions of a formal nature that he may have made in drawing up the claim, in order for him to remedy them within a period of four days. If the claim is not accompanied by a certificate of the prior act of conciliation, the court clerk shall warn the claimant that he must accredit the holding or attempt of the aforementioned act within fifteen days from the day following receipt of the notification.
Once the claimant has made the correction, the clerk of the court shall admit the claim. Otherwise, he will inform the Court so that it may decide on its admission.
Once the claim has been admitted, once the concurrence of the requirements demanded by art. 80.1 in sections c) and d) have been verified, the judicial secretary will indicate, within ten days of its presentation, the day and time on which the conciliation and trial proceedings are to take place successively, with a minimum of fifteen days between the summons and the actual holding of said proceedings. In the scheduling of hearings and trials, the court clerk shall comply with the criteria established in art. 182 of the Civil Procedure Act.
The holding of the conciliation and trial proceedings, the first before the court clerk and the second before the judge or magistrate, shall take place in a single but successive summons, and for this purpose a formal summons shall be issued, with delivery to the defendants, to the interested parties and, where appropriate, to the Public Prosecutor's Office, of a copy of the claim and other documents. The writs of summons shall state that the acts of conciliation and trial may not be suspended for failure of the defendant to appear, and that the litigants must attend the trial with all the means of evidence they intend to use.
When the representation and defence at trial is attributed to the State Attorney, a period of twenty-two days shall be granted for consultation with the State Attorney General's Office-Directorate of the State Legal Service. When the representation and defence in court is assigned to the Social Security Administration Lawyer, a period of twenty-two days shall also be granted for consultation with the Directorate of the Legal Service of the Social Security Administration. The same period shall apply in the case of the Autonomous Communities, for consultation with the body established by their own legislation.
The trial shall be scheduled to take place after the aforementioned time limit.
Only at the request of both parties or for justified reasons, accredited to the court clerk, may the latter suspend the conciliation and trial proceedings for one single time, and the trial shall be scheduled again within ten days of the date of the suspension. Exceptionally and for serious circumstances duly proven, a second adjournment may be granted.
If the plaintiff, having been summoned in due form, does not appear and does not allege just cause for the suspension of the conciliation proceedings or the trial, the court clerk in the first case and the judge or court in the second, shall consider him to have withdrawn his claim.
The unjustified non-appearance of the defendant shall not prevent the conciliation and trial proceedings from taking place, and the latter shall continue without the need to declare the defendant in default.
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