What happens at conciliation and the labour court (juzgado de lo social)

Terms used

• Graduado social — A graduado social is a licensed labour-law professional who can represent you in labour court and appeals.
• IRPF — IRPF is Spain's personal income tax.
• Sentencia — The sentencia is the judge's written ruling.
• Salarios de tramitación — Salarios de tramitación are the back pay owed from the dismissal date until the ruling when you are readmitted.

Key rules

• Conciliation: Conciliation is mandatory before you sue, and missing it without a justified reason can end your claim.
• Burden of proof: In a dismissal case your employer must prove the reason, so it speaks first at the hearing.
• Appeal deadline: You have 5 working days from the ruling to give notice of intent to appeal.
• Settlement: Accepting an offer ends the case, but compensation up to the legal amount is income-tax exempt.

The short version

A dismissal claim has two stages. First comes a short conciliation session, where you can settle. If there is no agreement, the case goes to a hearing before a labour judge. Many cases end before judgment, so decide early what you would accept.

Conciliation: the first stage

Conciliation is mandatory before you sue. It is usually scheduled within about 15 days and lasts only 10-15 minutes. A conciliator, who is a public official, invites you and your employer to settle. You can attend yourself or send a representative.

Employers often offer the statutory compensation for an unfair dismissal, 33 days of salary per year worked, up to 24 months, to avoid a trial. If you accept, the case ends. If you decline, you keep the right to sue.

The result is recorded in one of two ways:

• Con avenencia: you reached an agreement. It can be enforced like a judgment through the labour court if the employer does not honour it.
• Sin avenencia: no agreement. This lets you file the lawsuit.

If someone does not turn up

If your employer does not attend, conciliation is recorded as intentada sin efecto and you can sue. At trial, the judge can impose costs on the employer for unreasonable behaviour if the ruling is not more favourable to you than what you were offered.

If you do not attend without a justified reason, your claim is archived and treated as not filed. That can be fatal for the deadline. A justified absence can be rescheduled, so tell the office as soon as you know.

The hearing at the juzgado de lo social

The hearing is oral and quick. It runs in this order:

1. The judge first tries to get you to settle.
2. You confirm or change your claim.
3. The employer answers.
4. Evidence is heard: documents, statements from the parties, witnesses and experts.
5. Each side gives brief closing remarks.

In a dismissal case the employer must prove the reason for dismissal, so it speaks first. The written ruling (sentencia) arrives days or weeks later.

Judgment usually comes a few months to about a year after filing. Busy courts, such as those in Madrid, Barcelona and some southern and island provinces, are often slower.

What the judge can decide

• Procedente: the dismissal was justified. You get no compensation beyond anything already paid.
• Improcedente: the dismissal was unfair. Within five days, your employer chooses between readmitting you with back pay (salarios de tramitación) or paying 33 days of salary per year worked, up to 24 months. For service before February 2012, the rate is 45 days per year, with limits.
• Nulo: the dismissal was void, for example for discrimination, breach of fundamental rights or pregnancy. You must be readmitted with all back pay.

You may also be entitled to unemployment benefit.

Settling: what to know

You can settle at conciliation or before the judge at the start of the hearing. Either agreement is binding and enforceable. You can agree an amount instead of readmission.

Compensation up to the legal amount (33 days per year for unfair dismissal) is exempt from income tax (IRPF) and from social security contributions. Anything above that is taxable. A dismissal settled by agreement still gives access to unemployment benefit, as long as you are involuntarily unemployed.

If the settlement also covers other claims, have it drafted carefully so you do not waive rights by mistake.

Appeals

You have 5 working days from notification of the ruling to give notice of intent to appeal. Dismissal cases can always be appealed. The appeal is a recurso de suplicación before the Social Chamber of the regional High Court. It is limited to reviewing the facts or to breaches of law or case law. You must be represented by a lawyer or graduado social. An employer must also deposit the amount of the judgment and a deposit for the appeal.

A further appeal, the recurso de casación para la unificación de doctrina, goes to the Supreme Court within 10 working days of notification of the High Court ruling. It requires a conflict with a ruling on similar facts from another regional High Court or the Supreme Court.

Use the decision, timeline and checklist below to plan your choice.

Choosing between options

Should you settle your dismissal claim or go to judgment?

• Settle at conciliation or at the hearing: The offer is close to the 33 days per year worked, up to 24 months, and you want a quick, certain result.

• Decline and go to judgment: The offer is well below that amount, or you believe the dismissal is void and want to be readmitted with all back pay.

Compare the offer with 33 days of salary per year worked, up to 24 months. If it is clearly lower, or you want readmission, go on to judgment; if it is close and you want certainty, settle.

Timeline and deadlines

• File your claim within the dismissal deadline: within 20 working days of dismissal

• Attend the conciliation session, usually 10-15 minutes: scheduled within about 15 days of filing

• Go to the labour court hearing if there was no agreement: a few months after filing, in some courts up to about a year

• Receive the written ruling: days or weeks after the hearing

• If the dismissal is unfair, the employer chooses between readmission and compensation: within 5 days of the ruling

• Give notice of intent to appeal to the regional High Court: within 5 working days of notification

Checklist

• Attend the conciliation session yourself or send a representative.

• Decide before the session whether you would accept an offer of 33 days per year worked, up to 24 months.

• Gather your documents, witnesses and any expert evidence for the hearing.

• Be ready to ratify or change your claim when the judge asks.

• Expect the employer to speak first, since it must prove the reason for dismissal.

• Ask a lawyer or graduado social about appealing within 5 working days of the ruling.

What to watch out for

• Missing conciliation can end your claim: If you do not attend without a justified reason, the claim is archived and treated as not filed, which can make you miss the deadline. Attend, or ask to reschedule with a justified reason before the session.

• Accepting an offer ends the case: Once you accept an offer at conciliation, the case is over and the agreement is enforceable like a judgment. Compare the offer with the legal compensation of 33 days per year worked, up to 24 months, before you sign.

• Older service is calculated differently: For service before February 2012, compensation is 45 days per year, with limits, so a lower offer may undervalue your claim. Ask a lawyer to split your service into both periods before you answer an offer.

• Settlements can waive other rights: A settlement that also covers other claims, such as unpaid wages, can waive them. Read the wording carefully and have it checked before you sign.

Frequently asked questions

What happens if I miss the conciliation session?

If you miss conciliation without a justified reason, your claim is archived and treated as not filed, which can make you miss the deadline. If you have a justified reason, the session can be rescheduled.

What happens if my employer does not attend conciliation?

If your employer does not attend, conciliation is recorded as held without effect and you can go on to sue.

Is compensation I get in a settlement taxed?

Compensation up to the legal amount for an unfair dismissal, 33 days per year worked, is exempt from income tax, while anything above it is taxable. Social security contributions do not apply to the exempt part.

Can I still get unemployment benefit if I settle my dismissal?

Yes, a dismissal settled by agreement still gives access to unemployment benefit, provided you are in involuntary unemployment. The dismissal is recognised in the agreement.

How long do I have to appeal a labour court judgment?

You have 5 working days from notification to appeal a judgment, after giving prior notice of intent to appeal. You need a lawyer or graduado social, and dismissal cases can always be appealed.