Dismissal of workers
Spanish labor law considers employees to be vulnerable in comparison with the employers. So the labor rules are mostly protective of workers rights. I would like to talk about a very common issue, that is, whether the employer can fire the employee at will and what compensation is required to be paid for the dismissal of the employee.
No at-will employee dismissal
According to Article 52 of the Spanish Workers’ Law, the employer cannot dismiss an employee at will. Just cause is required for any dismissal. If no reason is alleged, the dismissal would be deemed null and void.
You cannot dismiss a worker at will (except within trial period), regardless of whether it is a temporary or permanent contract.
The dismissal cause may be based on:
- Objetive reasons: There are many objective reasons (economic, technical, organizational and production), and if any of them is satisfied, the worker can be fired without any problems.
The law considers the following circumstances are valid objective reasons:
-Economic cause: the company has current or expected losses, decrease of the level of income etc.
-Technical causes: the means of production are changed (e.g. the work is no longer done manually but by machines).
-Organizational causes: the way of organizing production or work systems or methods changes (e.g. some stage of the production process is no longer required).
-Production causes: changes in the demand for products or services
Dismissal for objective causes: Ineptitude of the worker
Ineptitude means the lack of professional or labor faculties of the worker. It can be because of lack of preparation or knowledge, loss of dexterity or speed, among others. In order to be alleged as a cause for dismissal, the ineptitude must be rellevant, as well as it must be supervening (if the company was already aware of such ineptitude before hiring the person, it could not be alleged later surprisingly).
Severance pay in case of dismissal for objective reasons
Article 53 of the Workers Law stipulates that the dismissal of a worker, albeit for objective reasons, requires a compensation. Severance package must be paid even in case of ineptitude of the workes.
The compensation that needs to be paid according to Article 53 of the Workers Law is as follows: for every year the employee works for the company, he or she will receive 20 days of wage. E.g. if the worker has been with the company for 2 years, then he or she will receive 40 days’ wages as compensation. If it is less than one full year, it will be prorated.
Dismissal for disciplinary reasons
In case of the employees misconduct, such as alcoholism, frequent tardiness, reduced work ability, insulting co-workers, crime, disobedience to the boss, etc., no compensation is required.
According to the above, although the company can fire a worker at will based on disciplinary reanons,these must be proved, which is not always easy.
The law provides that for unjustified disciplinary dismissal, the worker is entitled to 33 days’ pay for each year of service with the company.
