Null Dismissal in Spain: When Is Reinstatement Mandatory?

🇪🇸 Read the original in Spanish

Dismissal is one of the most complex and stressful situations a worker can face in Spain, especially if it occurs in violation of their most fundamental rights. In the Spanish legal system, declaring a dismissal as "null" (despido nulo) is not merely a financial penalty for the company, but a drastic judicial order that forces the employer to undo the steps taken and return the employee to their job. Understanding when mandatory reinstatement applies, what deadlines govern the process, and how back pay (salarios de tramitación) is calculated is essential to successfully defending your employment rights against an arbitrary business decision.

What is a null dismissal and how does it differ from unfair dismissal?

In Spanish labor law, the classification of a dismissal is not decided by the employer, but by a Social Court Judge (Juez de lo Social) following the corresponding lawsuit filed by the worker. A dismissal can be classified as fair (procedente), unfair (improcedente), or null (nulo).

The difference between unfair dismissal (despido improcedente) and null dismissal (despido nulo) is substantial:

• Unfair dismissal: The company can choose between reinstating the worker or paying them compensation (as a general rule, 33 days of salary per year of service, with a maximum of 24 monthly payments). In practice, almost all companies choose to pay the compensation and terminate the contract.
• Null dismissal: There is no compensation option for the company. The dismissal is legally considered as if it had never existed. The immediate and automatic consequence is the mandatory reinstatement of the worker to their job, under the same conditions they had before the dismissal, and the payment of the wages they stopped receiving (back pay / salarios de tramitación).

When is mandatory reinstatement applicable? Causes of nullity according to the Workers' Statute

The Spanish regulatory framework is highly protective of workers in this area. The causes that determine the nullity of a dismissal are mainly regulated in *Article 55.5 of the Estatuto de los Trabajadores (Workers' Statute - Royal Legislative Decree 2/2015) and in Article 108.2 of the Ley Reguladora de la Jurisdicción Social (LRJS / Law Regulating Social Jurisdiction)*.

A dismissal will be declared null in the following objective scenarios:

1. Violation of Fundamental Rights and public freedoms

Any dismissal is null if its motive is based on any of the grounds of discrimination prohibited by the Spanish Constitution or by law, or if it occurs in violation of the worker's fundamental rights. This includes:

• Discrimination based on birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.
• Dismissals motivated by the worker's trade union affiliation or by exercising the right to strike.
• Violation of the guarantee of indemnity (garantía de indemnidad): when the dismissal is a retaliation because the worker has previously claimed their rights (for example, for having reported the company to the Inspección de Trabajo (Labor Inspectorate) or having filed a claim for unpaid wages).

2. Protection of maternity, paternity, and work-life balance

Spanish legislation automatically and objectively protects workers (without the need to prove that the company acted in bad faith) in the following situations:

• Female workers during their pregnancy, from the start date of the pregnancy until the beginning of the suspension period of the contract due to childbirth.
• Workers who have requested or are enjoying leave for birth, adoption, guardianship for adoption purposes, foster care, or breastfeeding.
• Workers who have requested or are enjoying a reduction in working hours to care for minors or dependents under their charge (Article 37.6 of the Estatuto de los Trabajadores), or the adaptation of working hours for work-life balance (Article 37.8).
• Female workers who are victims of gender violence exercising their rights to reduce or reorganize their working hours.
• Workers after having reintegrated into work at the end of the suspension periods of the contract for birth, adoption, or foster care, provided that no more than 12 months have elapsed since the date of birth or adoption.

3. Fraudulent collective redundancies

The dismissal of workers affected by a collective redundancy (ERE / Expediente de Regulación de Empleo) will also be null when the company has not carried out the mandatory consultation period, has not delivered the required documentation, or has acted with fraud, coercion, or abuse of rights.

Consequences of null dismissal: Back pay and social security contributions

The declaration of nullity entails three immediate financial and legal effects that the company must compulsorily fulfill:

1. Immediate reinstatement: The worker must be reinstated to their previous position, with the same duties, schedule, work center, and salary.
2. *Payment of back pay (salarios de tramitación):* These are the wages that the worker has stopped receiving from the date of the actual dismissal until the date of notification of the nullity ruling. They are calculated by multiplying the worker's daily salary by the number of days the judicial process lasted.
3. Registration and contribution to Social Security: The company must register the worker with retroactive effect from the date of dismissal and pay contributions for the entire period that the judicial procedure lasted, as established by the Ley General de la Seguridad Social (LGSS / General Social Security Law).

Practical examples of calculation and consequences

To understand how these concepts are applied in reality, we will analyze two frequent scenarios.

Example 1: The dismissal of a pregnant worker (Laura)

Laura works as an administrative assistant in a service company in Madrid. Her gross monthly salary is €1,800 (including the pro-rata of extra payments), which is equivalent to a daily salary of €60 (€1,800 / 30 days).

• The event: Laura verbally informs her supervisor that she is two months pregnant. Two weeks later, the company hands her a dismissal letter alleging "low performance," without providing any proof of it.
• The lawsuit: Laura files a dismissal lawsuit. The judicial process is delayed, and the ruling of the Juzgado de lo Social (Social Court) is issued exactly 150 days after the effective date of the dismissal.
• The resolution: The Judge declares the dismissal null due to the objective protection for pregnancy (Article 55.5 of the Estatuto de los Trabajadores).
• The financial consequences for the company:
• Mandatory reinstatement of Laura to her administrative assistant position.
• *Payment of back pay (salarios de tramitación): €60/day x 150 days = €9,000 gross*.
• The company must pay the social security contributions for those 150 days to the Tesorería General de la Seguridad Social (TGSS / General Treasury of the Social Security).

Example 2: Dismissal as retaliation after claiming rights (Carlos)

Carlos is an IT support technician with a daily salary of €80. After claiming in writing the payment of unpaid overtime, the company dismisses him on disciplinary grounds alleging "insubordination."

• The event: The dismissal occurs just 5 days after Carlos filed a conciliation petition claiming the overtime.
• The resolution: The court determines that the dismissal violates the guarantee of indemnity (fundamental right to effective judicial protection, Article 24 of the Spanish Constitution) and declares the dismissal null.
• The time elapsed until the ruling: The judicial procedure takes 200 days to be resolved.
• The financial consequences for the company:
• Mandatory reinstatement of Carlos.
• *Payment of back pay (salarios de tramitación): €80/day x 200 days = €16,000 gross*.
• Additional compensation for moral damages: Having violated a fundamental right (guarantee of indemnity), the court orders the company to pay Carlos an additional compensation for moral damages of €6,000 (usually calculated under the scales of the Ley sobre Infracciones y Sanciones en el Orden Social - LISOS / Law on Infractions and Sanctions in the Social Order).

Step-by-step guide: How to claim a null dismissal

If you believe your dismissal is null, you must act quickly and with technical rigor. The procedure in Spain consists of the following steps:

``` [Dismissal] ---> [Conciliation Petition (Deadline: 20 days)] ---> [Conciliation Act (SMAC)] | +--------------------------------- <No agreement or non-appearance)+ | v [Lawsuit before the Social Court] ---> [Trial and Judgment] ---> [Reinstatement and Back Pay] ```

Step 1: Sign the dismissal letter as "No conforme"

When the company hands you the dismissal letter, sign it by writing in your own handwriting the expression "No conforme" (Not agreed) next to the date and your signature. This does not commit you to anything, but it makes it clear that you do not agree and makes it easier for you to claim later. Do not refuse to receive the letter; it is better to have the copy to know the company's arguments.

Step 2: Monitor the expiration deadline

The deadline to challenge a dismissal in Spain is extremely short: 20 business days (Saturdays, Sundays, and public holidays are not counted) from the day following the effective date of the dismissal. This is an expiration deadline (plazo de caducidad), which means that if you miss it by a single day, you will lose the right to claim.

Step 3: File the Conciliation Petition

Before going to court, it is mandatory to attempt an amicable agreement. To do this, you must file a Papeleta de Conciliación (Conciliation Petition) before the Servicio de Mediación, Arbitraje y Conciliación (SMAC / Mediation, Arbitration, and Conciliation Service) of your autonomous community. Filing this petition suspends the 20 business days deadline (the day counter stops temporarily).

Step 4: Attend the Conciliation Act

A meeting will be held between you (or your legal representative) and the company's representative.

• If there is an agreement (avenencia) and the company accepts the nullity and reinstates you, the process ends.
• If there is no agreement (sin avenencia) or the company does not show up, the 20-day deadline to file a lawsuit resumes the following day.

Step 5: File the lawsuit before the Social Court

If the conciliation act ends without agreement, you must draft and file a dismissal lawsuit before the Juzgados de lo Social (Social Courts) of the place where you provide services or the company's registered address. In the lawsuit, you must argue in detail the reasons why you are requesting the nullity of the dismissal.

Step 6: Trial and execution of the judgment

The Social Court Judge will issue a ruling. If they declare the nullity, the company will have a period of 3 days from the notification to effectively reinstate you. If the company refuses to reinstate you, you must request the execution of the judgment before the court itself.

Mistakes you must avoid when claiming a null dismissal

• Letting the 20 business days deadline pass: This is the most common and serious mistake. Relying on verbal promises of reinstatement by the company while the deadline passes can leave you without legal action to claim.
• Not signing "No conforme" or signing a releasing severance agreement: Although signing the severance receipt (finiquito) does not always prevent claiming if fundamental rights have been violated, signing a document where you declare that "you have nothing else to claim from the company" extraordinarily complicates the legal defense of your case.
• Not keeping evidence of the cause of nullity: If you allege discrimination or retaliation, it is vital that you save emails, WhatsApp messages, recordings of conversations, or medical reports that prove the company's knowledge of your situation (for example, your pregnancy or your health status).
• Finding another job and not reporting it to the court: If you find another job during the judicial process, you can perfectly do so. However, you should know that the salary you receive in the new job will be deducted from the back pay (salarios de tramitación) that the company that dismissed you must pay you (to avoid unjust enrichment). Concealing this fact can lead to legal problems.

Frequently Asked Questions (FAQ)

What happens if the company has closed or is insolvent?

If the company has closed permanently or has been judicially declared insolvent, physical reinstatement is impossible. In this case, the Social Court Judge will terminate the employment relationship due to the impossibility of reinstatement and will order the company to pay compensation equivalent to unfair dismissal, in addition to the back pay accrued up to the date of the resolution. If the company cannot pay, the Fondo de Garantía Salarial (FOGASA / Wage Guarantee Fund) will take over the amounts within the established legal limits.

Can I refuse reinstatement if the dismissal is declared null?

As a general rule, no. The consequence of a null dismissal is mandatory reinstatement. If the worker refuses to return once the judgment has been issued and requested by the company, they will lose their right to the job, to the back pay, and will not be entitled to receive any compensation, being considered a voluntary resignation (baja voluntaria). The only exception occurs if it is proven that reinstatement violates the dignity or physical or moral integrity of the employee, in which case an indemnified termination of the contract can be requested in court.

Am I entitled to unemployment benefits while the null dismissal lawsuit is being resolved?

Yes. After the dismissal, you can apply for and receive unemployment benefits (prestación por desempleo) if you meet the necessary contribution requirements. If the ruling subsequently declares the dismissal null and the company pays you back pay, you must return the amounts received for unemployment to the Servicio Público de Empleo Estatal (SEPE / State Public Employment Service), as back pay is incompatible with unemployment benefits. The company itself usually retains these amounts to pay them directly to SEPE.

Does medical leave (temporary disability) automatically protect against null dismissal?

Not automatically, but protection has increased substantially. Following the approval of Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination, the dismissal of a worker on temporary disability (incapacidad temporal / medical leave) can be declared null if it is proven that the sole reason for the dismissal was their illness or health status, as it is considered discrimination on health grounds.

In summary

• A null dismissal is one that occurs in violation of the worker's fundamental rights or situations of special protection such as pregnancy, maternity, or paternity.
• The main and unavoidable consequence is the mandatory reinstatement of the employee to their usual job.
• The company is obliged to pay all back pay (salarios de tramitación) missed from the dismissal until the ruling, as well as to pay Social Security contributions retroactively.
• The deadline to initiate legal action is only 20 business days by filing the prior conciliation petition.
• In cases of flagrant violation of fundamental rights, the worker may demand, in addition to reinstatement, additional compensation for moral damages.

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.