Disciplinary Dismissal in Spain: Causes and How to Defend Yourself

🇪🇸 Read the original in Spanish

Disciplinary dismissal is the most severe sanction an employer can impose in Spain, resulting in the immediate termination of the employment contract without any right to severance pay or prior notice. For any worker, receiving this notification creates a state of extreme vulnerability, especially if the dismissal is considered unjustified or disproportionate. In this article, we will analyze in depth what disciplinary dismissal is under Spanish law, what its legal causes are, what formal requirements the company must meet, and, most importantly, how you can defend yourself step-by-step to protect your rights and claim what you are owed.

What is Disciplinary Dismissal and What is Its Legal Framework?

Disciplinary dismissal is based on a serious and culpable breach of contract by the worker. Unlike other types of dismissal (such as objective dismissal for economic or technical reasons), this is not due to the company's situation, but rather to the employee's conduct.

The regulatory framework governing this mechanism consists of three fundamental pillars:

• *The Estatuto de los Trabajadores (Workers' Statute - Royal Legislative Decree 2/2015, of October 23): Specifically in its Article 54 (causes for dismissal), Article 55 (form and effects), and Article 56* (unfair dismissal).
• *The Ley Reguladora de la Jurisdicción Social (Law Regulating Social Jurisdiction - Law 36/2011, of October 10): Which governs the judicial claim procedure (especially Articles 103 to 113*).
• *The Convenios Colectivos (Collective Bargaining Agreements):* Each sector or company has an agreement that classifies offenses (minor, serious, and very serious) and details which specific behaviors justify a disciplinary dismissal.

For the dismissal to be valid, the worker's breach must meet two unavoidable requirements: it must be serious (of significant consequence and importance) and culpable (involving intent, negligence, or willful misconduct by the employee).

Causes for Disciplinary Dismissal (Article 54 of the Workers' Statute)

Article 54.2 of the Estatuto de los Trabajadores establishes a closed, numbered list of grounds that can justify a disciplinary dismissal:

a) Absences or lack of punctuality at work

Failing to show up to the workplace or arriving late repeatedly and without justification. The law does not establish a specific number of days or minutes; to determine the severity, one must refer to the applicable Convenio Colectivo, which usually sets the limit (for example, more than 3 unjustified absences in a month).

b) Indiscipline or disobedience at work

The worker has an obligation to comply with the employer's orders in the regular exercise of their management powers. A worker can only legitimately disobey if the order implies an imminent risk to health (occupational risk prevention), is manifestly illegal, or violates the worker's dignity.

c) Verbal or physical offenses

Any physical or verbal aggression directed at the employer, co-workers, or family members living with them. Mutual respect is a cornerstone of the employment relationship, meaning serious insults or physical assaults are usually direct causes for a justified dismissal.

d) Breach of contractual good faith and abuse of confidence

This is a "catch-all cause" frequently used by companies. It includes behaviors where the mutual loyalty between the company and the worker is broken. Common examples include engaging in unfair competition, diverting clients, faking an illness (being on incapacidad temporal or temporary medical leave while performing activities incompatible with recovery), or using company resources for personal benefit.

e) Continuous and voluntary reduction in work performance

For this cause to succeed, the reduction in the agreed or standard performance must be continuous over time (not a temporary slump) and voluntary (not due to a lack of training or health issues). Companies usually face difficulties proving this unless they have objective productivity metrics compared to previous periods or other colleagues.

f) Habitual drunkenness or drug addiction

This is only a cause for dismissal if it negatively impacts work performance. Isolated consumption outside of working hours is not enough; there must be habituality and a direct effect on performance or safety at the workplace.

g) Discriminatory harassment

Harassment based on racial or ethnic origin, religion or beliefs, disability, age, or sexual orientation, as well as sexual harassment or harassment based on sex, directed at the employer or people working in the company. The Spanish legal system has zero tolerance for these behaviors.

Mandatory Formal Requirements: The Dismissal Letter

A disciplinary dismissal cannot be verbal. Article 55.1 of the Estatuto de los Trabajadores requires that it be notified in writing through a carta de despido (dismissal letter). This letter must obligatorily contain:

1. The grounds motivating it: Described in detail, with specific dates, times, and behaviors. Generic accusations such as "for showing disrespect" are not valid.
2. The effective date: The exact day on which the employment relationship is terminated. In a disciplinary dismissal, there is no obligation for a 15-day notice period; the dismissal can take effect on the very day the letter is delivered.

Consequence of formal non-compliance: If the company does not deliver the letter in writing or fails to detail the facts, the dismissal can be declared improcedente (unfair) in court solely due to this defect of form.

Practical Step-by-Step Procedures: How to Defend Yourself

If you are handed a disciplinary dismissal letter, keeping a cool head and acting methodically are your best allies. Follow these steps rigorously:

Step 1: Receiving the dismissal letter

When you are handed the letter, you have the right to read it.

• Always sign as "NO CONFORME" (not in agreement) next to your signature and add the exact date and time of signing. This is crucial if the company attempts to deliver it out of time or with a retroactive date.
• Signing "No conforme" does not mean you refuse to receive it (which would not prevent the dismissal, as they could send it via burofax, a certified fax service), but rather that you record that you do not accept the reasons stated, reserving your right to claim.
• Ask for a copy signed and stamped by the company.

Step 2: Requesting the settlement (finiquito)

The company must provide you with the proposed settlement of proportional parts, known as the finiquito (final settlement). This includes the days worked in the month, unused vacation days, and the proportional part of the extra annual payments (pagas extraordinarias).

• If you are handed a finiquito document to sign, also write "No conforme y pendiente de revisión" (Not in agreement and pending review).
• In a disciplinary dismissal, the severance pay amount is €0, but you do have the right to collect your finiquito (the accrued and unpaid salary concepts).

Step 3: The 20-business-day expiration deadline

The deadline to challenge a dismissal in Spain is extremely short: 20 business days (Saturdays, Sundays, and national, regional, or local public holidays are not counted) starting from the day following the effective date of the dismissal. This is a plazo de caducidad (expiration deadline), meaning that if day 20 passes, you lose all rights to claim.

Step 4: Filing the Papeleta de Conciliación

Before going to court, it is mandatory to attempt an amicable agreement. To do this, a Papeleta de Conciliación (conciliation petition) is drafted and filed before the Servicio de Mediación, Arbitraje y Conciliación (SMAC - Mediation, Arbitration, and Conciliation Service) of your Autonomous Community.

• Filing this petition suspends the 20-day expiration deadline (up to a maximum of 15 business days). Once the conciliation act is held or the time limit expires, the countdown for the remaining days resumes.

Step 5: The Conciliation Act

A meeting will be held where the worker (or their representative) and the company representative appear before a conciliation officer. There are three possible outcomes:

• Con avenencia (With agreement): An agreement is reached. The company usually recognizes the unfairness of the dismissal and agrees on a severance payment.
• Sin avenencia (Without agreement): No agreement is reached. The path to file a lawsuit is opened.
• Intentado sin efecto (Attempted without effect): The company does not appear. The judicial path opens, and the judge could impose a fine on the company for procedural bad faith.

Step 6: Lawsuit before the Juzgado de lo Social

If there is no agreement at the SMAC, a lawsuit must be drafted and filed before the Juzgados de lo Social (Social Courts) within the remaining days of the initial 20 business days. A judge will then determine whether the dismissal is justified, unfair, or null and void.

Classification of the Dismissal by the Judge and Economic Effects

A Social Court judge can only classify the dismissal in one of three ways:

| Classification of Dismissal | Requirements / Grounds | Economic and Labor Consequences | | :--- | :--- | :--- | | Procedente (Justified) | The company proves the severity and culpability of the alleged facts and complies with the formalities. | The contract is permanently terminated. €0 severance pay. The worker retains the right to unemployment benefits if they have met the contribution requirements. | | Improcedente (Unfair) | The company fails to prove the facts, the facts are not serious, or irreparable defects of form were committed. | The company has 5 days to choose between: <br>1. Readmission paying the salarios de trámite (back pay).<br>2. Severance pay of 33 days of salary per year worked (capped at 24 monthly payments). | | Nulo (Null and Void) | The dismissal is motivated by a prohibited cause of discrimination or violates fundamental rights (pregnancy, reduced working hours for childcare, etc.). | Immediate reinstatement of the worker to their position under the same conditions, payment of unpaid salarios de tramitación (back pay), and a possible additional compensation for moral damages. |

Specific Examples of Severance Pay Calculation for Unfair Dismissal

If you challenge the disciplinary dismissal and the judge (or the company during conciliation) declares it unfair, the severance pay is calculated based on the worker's length of service. For contracts signed after February 12, 2012, the severance pay is 33 days of salary per year of service, with periods of time shorter than a year pro-rated by months, up to a maximum of 720 days (24 monthly payments).

Example 1: Carlos's case (Short length of service)

Carlos works as a software developer with an indefinite contract since January 1, 2022. He is disciplinarily dismissed on December 31, 2023, alleging a "reduction in performance". Carlos challenges the dismissal, and it is declared unfair.

• Length of service: Exactly 2 years (24 months).
• Gross monthly salary (including pro-rated extra payments): €3,000.
• Daily salary: €3,000 / 30 days = €100/day.
• Severance calculation: 33 days x 2 years = 66 days of severance pay.
• Total amount: 66 days x €100 = €6,600 of tax-free severance pay.

Example 2: Elena's case (Medium length of service and unfair dismissal)

Elena has worked in a supermarket chain since June 15, 2018. She is dismissed for disciplinary reasons (alleged unproven punctuality issues) on December 15, 2023.

• Length of service: 5 years and 6 months (a total of 66 months of service).
• Gross monthly salary (including pro-rated extra payments): €1,500.
• Daily salary: €1,500 / 30 days = €50/day.
• Severance days calculation: (33 days / 12 months) * 66 months = 181.5 days.
• Total amount: 181.5 days x €50 = €9,075 of severance pay.

Errors You Must Avoid

• Signing the dismissal letter without adding "No conforme": Although you could legally claim anyway if you prove coercion, signing without reservations makes your defense harder and can be interpreted as a tacit acceptance of the alleged facts.
• Letting deadlines pass thinking "it will be resolved by talking": The 20-business-day deadline is relentless. Negotiating verbally with the HR manager without filing the conciliation petition can cause you to run out of time to sue.
• *Believing that a disciplinary dismissal strips you of your right to unemployment benefits (paro): This is a very common myth. A disciplinary dismissal legally places you in a "legal situation of unemployment". If you have contributed for at least 360 days in the last 6 years, you have the full right to apply for and collect unemployment benefits (paro*).
• Failing to gather evidence before leaving the company: Once dismissed, you will lose access to corporate email, IT systems, and work chats. If you anticipate that you are going to be unfairly dismissed, securely gather (respecting data protection laws) emails, messages, or schedules that prove your innocence or show that the company's orders were abusive.

Frequently Asked Questions (FAQ)

Can the company dismiss me disciplinarily while I am on medical leave (IT)?

Yes, the company can notify you of a dismissal while you are on medical leave. However, following the approval of Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination, if the dismissal occurs solely due to the fact of being sick or on leave without a real and serious cause to justify it, that dismissal can be declared null and void for discrimination, forcing the company to reinstate you and pay your back pay.

What happens if I am dismissed verbally or via WhatsApp?

A verbal dismissal or one sent via messaging apps is radically null or unfair due to a blatant defect of form (breach of Article 55.1 of the Workers' Statute). If this happens to you, immediately send a burofax to the company requesting that they clarify your employment status in writing to prevent them from later claiming "abandonment of the workplace".

Do I have to give notice, or does the company have to give me notice in a disciplinary dismissal?

No. Since it is a sanction for a serious breach of contract by the worker, the termination is immediate. The company does not have to give you 15 days of notice, nor do you have to give any notice. You leave on the very same day you are handed the letter with effects as of that date.

What is salarios de tramitation (back pay) and when is it paid?

These are the wages the worker has missed out on from the date of dismissal until the date of the court ruling or until the company opts for severance pay. Currently, in the case of unfair dismissal, back pay is only paid if the company chooses to reinstate the worker, or if the worker is a legal representative of the workers or a union delegate (who holds the right to choose). It is also always paid in the case of a null and void dismissal.

If the company accuses me of stealing or committing a crime, can they dismiss me without a prior criminal trial?

Yes. Social jurisdiction is independent of criminal jurisdiction. The company can dismiss you disciplinarily alleging a breach of contractual good faith if it has indications or evidence of misappropriation or theft, without needing to wait for a criminal judge to convict you. However, in the labor trial, the company will have to convincingly prove those facts before the Social Court judge.

In Summary

• Disciplinary dismissal is the most serious sanction in the Spanish labor market, regulated by Article 54 of the Workers' Statute, and carries an initial €0 severance pay.
• To be valid, it must obligatorily be notified in writing through a detailed carta de despido with a clear effective date.
• The deadline to challenge the dismissal is only 20 business days from the day following its effectiveness, and it is mandatory to first file a Papeleta de Conciliación.
• Signing the dismissal and settlement documents accompanied by the phrase "No conforme" is the essential initial step to protect your right to claim.
• If the dismissal is declared unfair in conciliation or court, you will be entitled to severance pay of 33 days per year worked (up to a maximum of 24 monthly payments).
• Despite the severity of disciplinary dismissal, the worker *retains intact their right to apply for unemployment benefits (paro)* if they meet the general contribution requirements before the Social Security system.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.