Is a disciplinary dismissal (despido disciplinario) fair, unfair or null?

Terms used

• Procedente — Procedente means the judge finds the dismissal fair: the breach was proven and serious, and the contract ends without compensation.
• Improcedente — Improcedente means the judge finds the dismissal unfair, so the employer must readmit you with back pay or pay compensation.
• Nulo — Nulo means the dismissal is null and has no effect, so you return to work and receive the wages you missed.
• Salarios de tramitación — Salarios de tramitación are the back pay for the period between your dismissal and the judgment or your readmission.

Key rules

• Fair dismissal: A dismissal is fair only for a serious, culpable breach that the employer proves and notifies in a compliant letter.
• Faulty letter: A letter missing the facts or the date usually makes the dismissal unfair, not null, unless it concerns a protected category.
• Unfair result: The employer chooses between readmitting you with back pay and paying compensation.
• Null result: You must be readmitted at once, with all missed wages and Social Security contributions.
• Protected situations: Dismissal during pregnancy, birth leave or similar protected situations is null, unless it is declared procedente for unrelated reasons.

The short answer

A disciplinary dismissal is fair only when two things are true: your breach was serious and your fault, and the employer gave you a letter that meets the formal rules. If either is missing, the dismissal is unfair or null. The consequences differ a lot, so it matters which one applies.

A judge declares a dismissal procedente (fair), improcedente (unfair) or nulo (null). The choice box below compares them.

What counts as a serious, culpable breach

The employer must show a serious breach that was your fault. The law lists these grounds:

• Repeated, unjustified absences or lateness.
• Indiscipline or disobedience at work.
• Verbal or physical offences against the employer, colleagues or their family.
• Breach of good faith or abuse of trust.
• A continued, voluntary drop in your normal or agreed work performance.
• Habitual drunkenness or drug addiction, if it hurts your work.
• Harassment based on racial or ethnic origin, religion, disability, age or sexual orientation, or sexual harassment or harassment based on sex, aimed at the employer or colleagues.

Being on a list is not enough. Courts ask whether the breach is serious enough to justify the harshest penalty. A single late arrival, for example, will rarely do. The employer carries the burden of proving the facts.

What the letter must contain

The dismissal must be in writing. The letter must state the facts that justify it and the date it takes effect. Vague wording such as "poor conduct" is a defect.

Extra steps apply in some cases:

• If your collective agreement requires a procedure, such as a hearing or a file, the employer must follow it.
• If you are a staff representative or union delegate, the employer must open a written file and give you a hearing.
• If you are a union member, the employer must first hear the union delegates.

The documents list below covers these.

If the letter is defective

The employer may correct a defective letter once, with a new notice within 20 days, and must pay your back pay for the gap. If it does not, the dismissal is improcedente. If the missing step concerns a protected category, such as the file for a staff representative, the dismissal can be nulo.

What each outcome means for you

Procedente. The judge finds the breach proven and serious. The contract ends and you get no compensation.

Improcedente. The breach is not proven or not serious enough, or the formal rules were not met. After the ruling, the employer has five days from notice of the judgment to choose between two options:

• Readmit you with back pay (salarios de tramitación).
• Pay you compensation.

If the employer makes no choice, readmission is presumed. Back pay is owed only if the employer chooses readmission, or if you are a staff representative who opts for readmission. If the employer deposits the compensation at the court within 48 hours of the dismissal and acknowledges the unfairness, back pay stops building from that deposit. The compensation figures are set out in the page on severance and compensation. The 33 days per year rate covers contracts signed after 12 February 2012, and service before that date is paid at 45 days per year.

Nulo. The dismissal has no effect. You return at once, on the same conditions as before. You are paid the wages you missed from the dismissal date to your return, and Social Security contributions are owed for that time. If your fundamental rights were violated, you can also claim damages.

When a dismissal is null

A dismissal is nulo if it:

• is based on discrimination prohibited by the Constitution or by law;
• violates your fundamental rights, including retaliation for exercising them;
• falls in a protected situation.

Protected situations include:

• leave for birth, adoption or fostering;
• risk during pregnancy or breastfeeding;
• pregnancy itself, from its start to the start of the leave;
• requested or current leave or reduced hours for childcare or care;
• being a victim of gender or sexual violence who is exercising your rights;
• the 12 months after you return from birth leave.

The exception is when the dismissal is declared procedente for reasons unrelated to those circumstances. Recent laws have also added protection in other cases, such as certain care leaves and requests for work adaptations.

What to do next

Count your deadline from the day after the dismissal takes effect, as the first-week checklist below explains. Because the case law on letter defects is detailed, get advice from a labour lawyer or union on your specific case.

Choosing between options

What outcome should you expect from the judge, and what does each outcome mean for you?

• Procedente (fair): The judge finds the breach proven and serious enough. The dismissal stands and the contract ends without compensation.

• Improcedente (unfair): The breach is not proven or not serious enough, or the letter did not meet the formal requirements. Your employer has five days from notice of the judgment to choose between readmitting you with back pay (salarios de tramitación) or paying compensation. The amounts are set out in the article on how much severance (indemnización) you are owed.

• Nulo (null): The dismissal is discriminatory, violates your fundamental rights, is retaliation, or falls in a protected situation. It has no effect, so you are readmitted at once on the same conditions, with the wages you missed and the social security contributions for that period. Extra damages may be added where fundamental rights were violated.

A dismissal is fair only for a serious, culpable breach with a compliant letter. If the breach or the letter falls short, it is unfair. If it is discriminatory, retaliatory or in a protected situation, it is null.

Timeline and deadlines

• Employer delivers the written letter stating the facts and the date the dismissal takes effect: when the dismissal is notified

• Employer may correct a defective letter once with a new notice, paying back pay for the gap: within 20 days of the first notice

• Employer chooses between readmitting you with back pay or paying compensation after an improcedente ruling: within five days of notice of the judgment

Documents you need

• A written dismissal letter (carta de despido) from your employer. It must state the facts that justify the dismissal and the date it takes effect.

• A written file with a hearing for you, if you are a staff representative or union delegate. Your employer must complete it before dismissing you.

• Proof that the union delegates were heard, if you are a union member. Your employer must hear them before the dismissal.

• Any procedure your collective agreement requires before a dismissal, such as a hearing or a file. Check the agreement that applies to your job.

First-week checklist after being dismissed in Spain

• Note the date the dismissal takes effect and count 20 working days from the day after, skipping weekends and holidays.

• Keep the dismissal letter (carta de despido), or write down the date, place and witnesses if you were dismissed orally.

• Gather your employment contract and any amendments, plus the collective agreement that applies to your job.

• Collect your last 12 months of payslips (nóminas) and bank statements showing your wages.

• Ask for the finiquito (final settlement) proposal and keep a copy, even if you refuse to sign it.

• Write "no conforme" and your reason next to your signature, or sign "recibí a cuenta" (received on account), if you must sign the finiquito.

• Ask your employer for the certificate of company contributions (certificado de empresa), which it sends to the SEPE, Spain's unemployment office.

• Download your vida laboral report, your work history, from Social Security.

• Save emails, messages, timesheets and any proof of unpaid sums, and keep your ID or NIE and bank account details ready.

• Apply for unemployment benefit at the SEPE within 15 working days of the dismissal.

• Ask for conciliation with the regional conciliation body before the 20 working days end, since this is required before going to the labour court and pauses the time.

What to watch out for

• A proven, serious breach ends the contract with no compensation: If the judge finds the breach proven and serious enough, the dismissal is procedente (fair) and the contract ends without compensation. Gather evidence that the facts in the letter did not happen or were not serious, and take it to a labour lawyer or union early.

• A faulty letter makes the dismissal unfair, not void: If the letter is missing the facts or the effective date, or a required procedure was skipped, the dismissal is improcedente (unfair). Your employer must then choose between readmitting you and paying compensation. Keep the letter and check it for the facts and the date. Tell your adviser about any hearing or procedure that was skipped.

• Protected situations make a dismissal nulo (null): A dismissal is nulo if it is discriminatory, violates your fundamental rights, or is retaliation. It is also nulo during pregnancy, birth, adoption or care leave, or reduced hours for care. Victims of gender or sexual violence exercising their rights are protected too. So are workers within 12 months of returning from birth leave. If any of these applies to you, tell your lawyer or union at the start. A null dismissal means readmission with back pay.

Frequently asked questions

Can an employer fix a dismissal letter that is missing facts or a date?

Yes, an employer can correct a defective letter once, by sending a new notice within 20 days, and must pay back pay for the time in between. If the employer does not correct it, the dismissal is improcedente (unfair).

Is being late once enough to justify a disciplinary dismissal?

No, lateness only counts as a ground when it is repeated and unjustified. Courts also check that dismissal is proportionate to the breach, so a minor or one-off lapse usually does not justify it.

When is a dismissal nulo (null) instead of improcedente (unfair)?

A dismissal is nulo when it is discriminatory, violates your fundamental rights, or is retaliation. It is also nulo if it happens during protected situations such as pregnancy, birth or care leave, or within 12 months of returning from birth leave.

What happens if the employer does not choose after an unfair ruling?

If the employer makes no choice, readmission is presumed, so you go back to work with back pay.