Grounds for challenging a dismissal
We recently discussed dismissal from employment in Spain based on financial grounds i.e. where a business is suffering an economic downturn and the employer claims they must lay-off staff for the business to remain commercially viable.
We argued that there is a reasonably good possibility of challenging such a dismissal, with a successful challenge meaning that the dismissal is declared to be ‘unfair’ and a higher amount of compensation is achieved – 33 day’s pay per year worked instead of the 20 days per year worked that is standard where the dismissal is considered to be objectively fair.
The fact that a company is suffering a period of financial difficulty is not sufficient of itself to render a dismissal as legitimate and fair. In order to demonstrate that a dismissal was justified, in the face of a challenge by the employee, the employer must overcome a number of hurdles:
- Prove that the company is undergoing an adverse economic situation. Nowadays, this is the easiest hurdle for the business to overcome, since there are many companies suffering financial difficulties.
- Demonstrate that this financial difficulty has sufficient magnitude to affect the volume of employment, making necessary the reduction in the number of employees. So while it may well be that the economic position of the business is poor, it may no be so grave as to justify the reduction in employee headcount. Here it is important to note that if a person is employed by a company, while having also carried-out work for another business which forms part of the same group of companies, then it is possible to include both in the claim for the dismissal to be declared unfair, and the economic difficulty must affect both businesses for the dismissal to remain fair. Therefore if the other business is functioning with no financial problems, the dismissal would be declared to be ‘unfair’, triggering the higher compensation.
- Demonstrate that the dismissal was an appropriate measure to respond to the financial difficulties that the business was suffering. This means that, although the business may well have financial problems, there may be other – less drastic – measures, than dismissal, that can be taken in order to remedy the situation. For example, if the business, before going ahead with the dismissal of the worker, has been taking on other employees for similar positions in the company, that would be a sufficient reason for the dismissal to be considered ‘unfair’.
- The ‘carta de despido’ is a very important document and is where many court actions against unfair dismissal are won. This document must specify very clearly the reasons for the dismissal, explaining the account of the company and specifying figures, in such a way that the employee has sufficient information to defend their rights. In addition, at the time of the dismissal, the company must provide the worker with the appropriate amount of compensation.
Taken together, the hurdles that the employer has to overcome can be significant and may well ensure that the worker achieves a higher level of compensation than initially offered.
Getting fired in Spain – Pregnant employee’s dismissal during trial period not unfair
The Supreme Court has taken the opportunity of hearing a case involving the dismissal of a pregnant woman from her place of work to consider the boundaries of the employment protection laws in Spain, in particular Article 55.5.b of the Ley de Estatuto de los Trabajadores (Law 39/1999) which is the principal legislation in this area.
This particular piece of legislation renders invalid the dismissal of a woman from her employment from the moment she becomes pregnant until after the regulatory period of maternity leave. Art 55.5.b states, and this is the case regardless of the motive for the dismissal and where it is demonstrated that the employer had no knowledge of the pregnancy:
“Dismissal in the following circumstances shall also be considered invalid:
b) That of workers who are pregnant, from the date upon which they became pregnant until (…) the period of maternity leave or those workers who are at the time on maternity leave or have requested maternity leave”
Once a dismissal has been declared invalid, the worker has the right to readmittance to her place of work and to receive any pay that she would have received for this period of work.
Trial Periods Not Covered
In this particular case the employee had become pregnant after being given a six month contract to work in the sales department of the respondent company, but was dismissed within the initial two month trial period for failing to reach the sales objectives. The company had claimed to be unaware of the fact that the employee was pregnant though the employee claimed that she had told her employers that she had become pregnant. In their defence the employer said that they had also dismissed a male employee who had also failed to achieve the sales targets during the trial period.
The Supreme Court decided by a majority decision that, effectively the termination of the contract between the employee and the employer was not a dismissal as the trial period had not been exceeded.
While the Court affirmed that dismissal of an employee during the trial period would be invalid if it infringed fundamental rights, the dismissal of a male employee at the same time and for the same reasons evidenced that the motives for the dismissal did not relate to personal attributes of the employee i.e. such as her gender, but rather related to objective issues such as aptitude for the job.
Dismissal for Smoking at work Upheld
In a sign of the times, the Tribunal Superior de Justicia in Murcia has considered lawful the sacking of a worker for smoking a cigarette in the male changing rooms at his workplace.
The Court, reversing the decision of the lower court, categorised the actions of the employee as a ‘very serious offence’ within the terms of the Collective Agreement that manages relations between employers and workers in the Canned Vegetable sector of the agricultural industry.
The Court also mentioned that the actions of the employer were consistent with Law 28/2005 which outlaws smoking in public and private workplaces. Accordingly, the employer could not be tolerant of such actions as were carried out by the employee in violation of the legal obligation introduced by the legislation.
The Supreme Court pointed to the fact that the company operated in the food sector which accentuated the need for hygienic practices and it considered it to have been proven that there were many signs hung on walls throughout the factory emphasising to the staff that smoking was prohibited and failure to comply with this rule could eventually lead to dismissal.
Specifically, the Court heard, in the male changing rooms, where the transgression had occurred, a sign was plainly visible that stated ‘Smoking Prohibited – Royal Decree 192/1988’.
The decision should be considered within the context that it can be extremely difficult to sack an employee in Spain, and turning-up to work drunk or under the influence of drugs – actions that would be expected to incur instant dismissal in the UK – may not be considered sufficient breaches under Spanish employment laws to merit dismissal.
The employee had in fact previously been sanctioned for a serious breach in 2009 which caused an accident at the workplace as well as for misconduct.
What to do if you get fired in Spain?
If you get fired from your job in Spain, the best advice you will receive from a lawyer experienced in the field of Spanish employment law is: don’t waste any time.
The reason this is valuable advice is because in Spain, the deadline to appeal against a dismissal is strict and clear: 20 working days from the notification of the dismissal.
Once the notification of dismissal has been received (usually by letter) the first thing you have to do is contact a lawyer in order to review the dismissal as you might be entitled to:
- Compensation of up to 33 days for every year you were employed, or
- In some cases, you might be also entitled to get your job back, with the payment of all the unpaid salary from the day of the dismissal until the reinstatement.
On top of that, in line with our experience in such cases, it is possible to say that in many situations, while reviewing the case, we find out that the employer was infringing the worker’s rights, for example by (among other things):
- Giving less days annual leave than that which is established according to the Collective labour agreement;
- Paying the worker less than the amount established according to the Collective labour agreement;
- Paying overtime hours at a lower rate than the amount established according to the Collective labour agreement;
- Irregular contracts.
Unfortunately, we have seen many cases where, despite the worker having very high probability of obtaining considerable compensation, they have missed the opportunity because they us after the expiry date for bringing a claim. It is of course a great pity when this happens, and of course it is a source of instant regret for the employee affected.
Once you appeal the dismissal, there is a mandatory referral to mediation (in normal cases, around 3 weeks from the claim) where both parties will be called to try to reach an agreement.
The former employee (or an appointed representative) must always be present at the mediation, otherwise the claim will be automatically dismissed.
In case no agreement can be reached, the lawsuit will continue before the Court (Juzgado de lo Social).
Another helpful thing to note is: never lose hope or decide not to claim because the Employer goes bankrupt.
In Spain, there is a special fund that covers workers credits towards the Employee up to quite a considerable amount, in order to protect workers’ rights.
In conclusion we can say that the “keywords” for anyone who has been fired in Spain are:
- Act fast;
- Don’t panic;
- Contact an employment lawyer.