Leaving with severance when your employer breaches your contract (Article 50)

Key rules

• Time limit: You must bring the claim within one year of the cause arising.
• Keep working: Keep turning up for work until the judgment ends your contract, unless a lawyer advises otherwise.
• Seriousness: The breach must be serious and persistent; minor or one-off problems may not be enough.
• Severance: A successful claim pays unfair-dismissal severance, and your contract ends from the judgment.

The short answer

If your employer seriously breaches your contract, you can ask a labour court to end it. If the court agrees, you get the same severance as for unfair dismissal. You must follow the procedure and file within one year.

Which breaches count

The breach has to be serious and to last or repeat. A small or one-off slip is usually not enough. The main grounds are:

• Big changes to your working conditions. The employer made substantial changes without following the proper procedure, and they harm your dignity or professional training.
• Unpaid or repeatedly late wages. This covers pay that was agreed but not paid on time.
• Other serious breaches by the employer. One example is refusing to restore your conditions after a court ruled against a change or a transfer. Other common examples are harassment, not giving you work, and not registering you with Social Security.

How the process works

1. Ask for the mandatory conciliation meeting before going to court. In most cases this is done at the SMAC or the equivalent body in your region.
2. File your claim in the labour court, the Juzgado de lo Social.
3. Keep working while the case is pending. Your contract continues until the judgment says it has ended.

You can also ask the court for medidas cautelares. These are temporary orders, for example suspending the employer's measure or ordering payment.

Stopping work is risky. The employer may treat it as a resignation or as a dismissal for absence. The exception is when continuing would harm your dignity or health, as in serious harassment. Courts may accept that, but the risk remains. Talk to a labour lawyer before you stop.

The time limit

You have one year from the day the cause arose. For a breach that continues, such as unpaid wages, the year runs from the last breach while it persists. For a one-off breach, it runs from the event. Asking for conciliation pauses the clock. The court decides in each case whether a breach is continuing, so do not wait.

What you receive

Your contract ends from the date of the judgment. Severance is the unfair-dismissal rate: 33 days of salary per year of service, with part-years counted by months, capped at 24 monthly payments. Service before 12 February 2012 is paid at 45 days per year. After the judgment you may be able to claim unemployment benefit.

The timeline, checklist, warnings and questions below cover the steps and common doubts.

Timeline and deadlines

• Ask for the mandatory conciliation meeting before going to court: before you file the claim, and within one year of the cause arising

• File your claim in the labour court (Juzgado de lo Social): within one year of the cause arising, once conciliation has been attempted

• Keep working while the case is pending: from filing until the judgment is delivered

• Receive the judgment: your contract ends from that date: on the date of the judgment, if the court upholds your claim

• Collect severance at the unfair-dismissal rate of 33 days of salary per year of service, up to 24 monthly payments, with service before 12 February 2012 at 45 days per year: after a judgment in your favour

Checklist

• Ask the court for precautionary measures (medidas cautelares), such as suspending the employer's measure or ordering payment of what you are owed.

• Keep turning up for work until the judgment says your contract has ended.

What to watch out for

• Stopping work can cost you your claim: If you stop working on your own, your employer may treat it as a voluntary resignation or a dismissal for absence, and you could lose the severance. Courts may accept that work stops when staying would harm your dignity or health, for example in serious harassment, but that is risky. Keep working until the judgment, and get legal advice before you stop for any reason.

• A small or one-off breach may not be enough: The court will only end the contract if the employer's breach is serious and persistent enough. A minor lapse can mean the claim fails and your contract continues. Before filing, check with a labour lawyer that your situation, such as unpaid or repeatedly late wages, is serious enough.

• Your contract does not end when you file: The contract ends only when the judgment says so. Until then you stay bound by it, and you do not get severance. Plan your finances for the whole time the case takes, and do not resign or leave your job in the meantime.

Frequently asked questions

Can I get unemployment benefit if the court ends my contract?

Yes, you may be able to claim unemployment benefit once the judgment ending your contract is delivered. The contract ends from the judgment, not from the day you file the claim.

When does the one-year limit start for unpaid wages?

For unpaid wages, the one-year limit runs from the last breach while the non-payment continues. For a one-off breach, the year starts from the event itself.

Do harassment or not being registered with Social Security count as serious breaches?

Yes, harassment, not being given work and not being registered with Social Security are common examples, but the court must find the breach serious and persistent enough. A minor or one-off lapse is unlikely to be enough.