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What is the procedure for dismissing an employee?

Steps to dismiss an employee for serious and culpable breach of contractIf you are an employer you will know that the decision to dismiss an employee is a very difficult one. In addition to the legal implications, it has emotional consequences that affect people in their private lives. In this article we tell you what types of dismissal there are, what steps are involved in the dismissal process, what is the content of the dismissal letter and why it is important to have the help of a labour consultant. 

What types of dismissal are regulated in the Workers’ Statute?

In Spain, dismissal is regulated in article 49 of the Workers’ Statute, which refers to the dismissal of the worker as one of the causes for termination of the employment contract. 

On the other hand, dismissal can be of different types: 

  1. Disciplinary dismissal.

    In this case, the employer decides to terminate the employment contract because there has been a serious and culpable breach by the worker.

  2. Objective dismissal.

    This type of dismissal is based on objective causes, such as the worker’s ineptitude after being placed in the company or the lack of adaptation to the technical modifications of his or her position.

  3. Collective dismissal.

    This occurs when the company decides to dismiss several workers. The specific number to be considered collective dismissal depends on the number of workers in the company, and must be carried out within a period of ninety days, for economic, technical, organisational or production reasons.

Each type of dismissal has a different procedure. In this article we will focus on disciplinary dismissal.

In addition to the above, there are also: 

  • Unfair dismissal:

    When it is declared as such by a judgement. In this case, the employer must choose between reinstatement of the worker or payment of compensation. 

  • Fair dismissal:

    This occurs when the breach alleged by the employer is proven.

  • Invalid dismissal:

    This occurs when the dismissal is due to discrimination or violation of fundamental rights and public freedoms, among other causes.

Steps to dismiss a worker for a serious and culpable breach of contract

Having reviewed the types of dismissal regulated by Spanish law, you may be wondering, but what do you have to do to dismiss an employee? The process for disciplinary dismissal is regulated in article 55 of the Workers’ Statute and consists of several steps: 

  1. Notification 

The dismissal must be communicated to the employee in writing, and the letter of dismissal must contain the following elements: 

  • The reasons for the dismissal. 
  • The date on which the dismissal is to take effect. 

If these requirements are not fulfilled, the employer may issue a new dismissal, fulfilling all the formalities that have been omitted. 

This must be done by means of a letter of dismissal which must be delivered to the worker by hand or sent by burofax, to ensure that he/she has received the notification.

  1. Deadlines 

In disciplinary dismissal, no prior notice is necessary, and the dismissal is effective from the moment it is communicated to the employee. However, it is essential that the decision is communicated with respect for the individual and that the reason for the decision taken by the company is clearly and correctly explained. 

It is important to remember that, in disciplinary dismissal, the employee is not entitled to compensation, as he or she is considered to have seriously failed to fulfil his or her obligations. However, if the dismissal is subsequently declared unfair, he/she is entitled to compensation. 

  1. Delivery of severance pay

The settlement is the document detailing the outstanding amounts to be paid, such as the current month’s salary, holidays not taken, extra payments not received and other outstanding items. This document must be signed by both parties.

  1. Possible claims by the employee

Even if the dismissal has complied with all the above steps, the worker has the right to make a claim within 20 days from the date on which the dismissal becomes effective, if he/she does not agree with the dismissal. The process in this case is as follows: 

  • Filing of a conciliation paper at the corresponding Mediation, Arbitration and Conciliation Service (SMAC). 
  • Conciliation proceedings. The worker and the employer must attend, either by themselves or represented. If no agreement is reached, a lawsuit may be brought before the Social Court. 
  • Legal proceedings before the court. If the employee files a lawsuit, the court will set a date and time for the trial and will subsequently issue a judgment in favour of the employee or the employer. An appeal may be lodged against this judgment with the High Court of Justice of the Autonomous Community. 

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Common mistakes when dismissing a worker

It is quite common to make mistakes that can lead to a disciplinary dismissal being declared unfair or, in some cases, even null and void. Some of the most common mistakes are the following: 

  • Not clearly specifying the reason for dismissal in the letter.
  • Not having sufficient evidence to justify the cause of dismissal. 
  • Communicating the dismissal verbally. 
  • Incorrectly calculating the severance pay. 

In short, these are complicated situations, in which it is crucial to have the help of a labour consultancy to analyse the case and manage the procedures to avoid mistakes and claims. 

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