Table of Contents
What is the compensation for unfair dismissal?
When is a dismissal unfair? We explain the reasons and how much you will earn if the employment relationship is terminated and the company or a judge declares the dismissal unfair.
We help you calculate the compensation for unfair dismissal that would correspond to you. And if it is not properly recognized in the dismissal letter, we will tell you how to claim.
How is the unfairness of the dismissal determined?
The first thing you should know is that unfairness can be declared whether it is a disciplinary dismissal or an objective dismissal. Both are the only two types of dismissal in Spain. The first is when the employer’s unilateral decision occurs for reasons beyond the worker’s control (for example, if there have been events that have affected the operation of the company), while in the second the “fault” does lie with the person hired.
Either of these two types of dismissal -objective or disciplinary- can be classified as appropriate, null or unfair. If this third option is given, unfair dismissal, it will mean that the dismissal does not come from a justified reason, in two ways:
- That does not conform to the laws.
- That the employer does not sufficiently prove the alleged cause (or does so with vagueness), and it cannot be confirmed that it is real. This is called “failure to prove.”
In any case, if after the termination of the contract it is determined that an objective dismissal is unfair, the consequences are the same as in an unfair disciplinary dismissal. Because the key is the inappropriateness itself.
There is also impropriety if…
It may happen that, although the reason for the dismissal is appropriate (fair), the way of formally communicating it does not conform to the regulations. For example, that the person be fired verbally and not through a dismissal letter that meets all the legal requirements. Therefore, the termination could also be considered unfair, as it would be if the corresponding compensation and/or settlement is not made available to the employee.
And there isn’t when…
On the contrary, it must be taken into account that if the company does not give the worker due notice only set for objective dismissals, or there is an “excusable” error in the calculation of the compensation or settlement, this does not mean that the dismissal is unfair. However, in these circumstances, if the claim is successful, the employer will have to pay the salaries corresponding to said period or the compensation in its correct amount, respectively.
Other causes of unfair dismissal
Apart from the causes that we have listed in the previous section, there will also be an inadmissibility if it is found that the company is lying. For example, if it is argued that the worker arrives late for his job every day and in reality this has not been the case, his colleagues testify to this.
Likewise, another sign of unfair dismissal would be if the worker’s fault/non-compliance is not so serious or forceful as to expel him from the company (for example, if they fire you for the sole reason of having smoked one day in areas where it is not allowed). Or that he performs tasks incorrectly but due to a lack of information -or training- on the part of his superiors.
Consequences of unfair dismissal
As an immediate consequence, and as happens with fair or null dismissal, the first effect of unfair dismissal is the compulsory abandonment of work, with the termination of the contract. But the second is compensation. Although, attention!, there may also be a readmission. Let’s see it in detail.
1. Unfair dismissal compensation
The amount of compensation for unfair dismissal is 33 days of salary per year of service, but with a maximum of 24 monthly payments. However, there is an exception where he charges more: 45 days per year worked, with the maximum here being 42 monthly payments. This second computation applies only to contracts entered into before February 12, 2012. And only for the time worked before that date. The months -or years- elapsed after February 12, 2012 will be paid at a rate of 33 days per year. Regardless of whether the employment contract had been signed previously.
In conclusion, the amount of money received is higher than if there were a fair dismissal, in which the company must pay only 20 days per year worked, up to 12 monthly payments.
In unfair dismissals, the indemnities set are intended to protect the citizen if there is an abuse by the employer in the form of unfair dismissal.
2. Reinstatement for unfair dismissal
Can the job be recovered if the dismissal is unfair? The delivery of compensation allows the employer to terminate the employment contract , so that the former employee becomes legally unemployed. But, as we advanced before, the employer can also choose to readmit the person once the inadmissibility has been verified. In this case, the worker must be paid the processing wages, which are the days that he was not active due to the dismissal and that, if he reincorporates, he must collect.
If the reinstatement finally becomes a reality, it is mandatory to repay the compensation previously received. Although for this you have to wait for a sentence that declares the inadmissibility and that, in addition, this is final.
And if it is so determined in the sentence but later readmission is not possible? What happens if the worker refuses or if the company no longer has that position available, for example? Or do you directly not want to have that person on your staff again? In these cases, the affected party does not have to return the compensation. And, as an added value, the amount of compensation must be recalculated up to the date of the judicial decision, and the convicted party must transfer that difference.
How to calculate compensation for unfair dismissal
If the unilateral decision of the employer, instead of reinstatement -which, in fact, is not frequent- is to compensate the worker, it is not trivial for him to know how compensation for unfair dismissal is calculated. At least in broad strokes, to be able to check if the payment seems correct and, if not, review it with a specialist lawyer.
In order to calculate compensation for unfair dismissal, it does not matter whether the dismissal has been objective or disciplinary. The formula has no differences. The essential thing is the daily salary, which is found by dividing the contribution base of the previous month by 30, as well as the parameters that we have mentioned before : compensation of 45 days per year worked for contracts prior to February 12, 2012, and 33 days of salary per year of service if signed on or after that date. With a maximum of 24 monthly payments in the second option, and 42 in the first. Without forgetting that if you have worked before and after February 12, 2012, you will have to use both formulas, one for each period.
Example of compensation for unfair dismissal
Taking this regulation into account, let’s see an example :
Ernesto signed his employment contract on January 1, 2010 and was fired on December 7, 2016, his daily salary being €50.
- From 1/1/10 to 2/11/12) = €50 per day x 26 months x 3.75 (result of 45 days per year between 12 months) = €4,875.
- From 2/12/12 to 12/7/16) = €50 per day x 58 months x 2.75 (result of 33 days per year between 12 months) = €7,975.
- Finally, both figures are added: 4,875 + 7,975 = €12,850. This would be the compensation to which you would be entitled.
How to act against an unfair dismissal?
In contrast to fair dismissal, which can only be issued by a judge, unfair dismissal can be recognized, initially, by the employer in the dismissal letter. In these circumstances, the compensation will be 33 days per year. And there would be no need to go to trial, since the company has “confessed” and has paid accordingly.
The point is that on many occasions this is not the case, and a dismissal supposedly fair according to the company with compensation of 20 days per year can end up being classified as unfair. There are two ways this could happen:
Conciliation
If you want, after a possible unfair dismissal, to claim, the first thing is to try to reach an agreement with the company in the so-called conciliation act (mandatory step before going to court). This meeting is held at the SMAC : Mediation, Arbitration and Conciliation Service. And to request it, a conciliation ballot must be filed, as a prior procedure.
At this meeting, the employer’s initial unilateral decision can be reconsidered and the company can accept that the dismissal was unfair, committing to pay the relevant compensation.
The term to file the conciliation ballot is 20 (business) days from the time the dismissal is formally notified. However, the time from when the ballot is presented to the conciliation act does not consume days of said period.
Trial for unfair dismissal
When there is no consensus between the parties, if the affected person decides to continue with the process to obtain the compensation for unfair dismissal that they deserve, a legal claim can be filed. If the courts admit it, a trial would take place. There a judge can classify the dismissal as unfair, through a sentence that declares the unfairness.
The deadline for filing the claim is 20 business days from the notification of the dismissal. But, as we have just pointed out, the calculation of days is paralyzed during the time that the conciliation procedure lasts.
Is there a right to unemployment after an unfair dismissal?
Yes, but only if you have generated the right with your quotes. Specifically, after an unfair dismissal you will have the right to collect the contributory unemployment benefit when you have contributed for at least 360 days in the last six years. But remember that you must request it and register as a job seeker in the SEPE in the near future, the Spanish Employment Agency.
From that moment you will find yourself in a legal situation of unemployment, even if you are in the middle of the conciliation process or awaiting a trial date.
Can they fire me again?
Let us now imagine that a lawsuit is filed for unfair dismissal due solely to formal defects. Well, there may be a new dismissal, where the technical errors of the previous one are corrected. Because the law grants the employer the possibility of issuing a new communication that respects the law. Both before the trial and once the sentence has been published.
If you wait for the sentence to be issued, logically you can only say that the employment relationship is terminated (again) if the magistrate rules that the dismissal is unfair and the company, instead of giving you compensation, chooses to reinstate you. And he will have seven days to carry out this new termination once the worker ceases to be legally unemployed.
Difference between unfair and null dismissal
Both a disciplinary dismissal and an objective one extinguish the labor relationship and may be unfair if it is proven that they are unjustified. The difference with null dismissals is that these respond to discrimination or the violation of the fundamental rights and public liberties of the person.
Among many other assumptions, and highlighting perhaps the most flagrant, women victims of gender violence, when they make use of their right to request the action of the judicial bodies in their defense and are dismissed for this reason, could claim null dismissal. And the same is applicable if there is a medical leave due to diseases caused by pregnancy.
Is it worth claiming unfair dismissal?
Conclusion
Whether it is invalid or inadmissible, or rather, if an expert lawyer thinks it may be, it is always advisable to file a claim. The goal is to reach an agreement or sentence that declares the inadmissibility -aspect that concerns us in this article-, either to return to the position or to receive compensation according to your salary per year of service (yes, with a maximum of 24 monthly installments, unless your contract is prior to February 12, 2012). In short, if there are signs of unfair dismissal, claiming is an option that you should not rule out, and meditate on it “cold”, since perhaps during the first days you will be confused, which is something absolutely normal.