Disciplinary dismissal in Spain: grounds and when it is fair
A disciplinary dismissal (despido disciplinario) is one decided by the company because of a serious and culpable breach by the worker. Under Spanish law it can only be based on the grounds in Article 54 of the Workers’ Statute (Estatuto de los Trabajadores): repeated absences or lateness, indiscipline, offensive behaviour, breach of good faith, a deliberate drop in performance, drunkenness or drug addiction that affects work, and harassment. It must be notified in writing, with the facts and the date, and if it is declared fair (procedente) it gives no right to compensation. If the company does not prove the facts, they are not that serious or it does not comply with the formalities, the dismissal is unfair (improcedente).
What are the grounds for disciplinary dismissal?
What is commonly called dismissal “for just cause” is, in law, dismissal for a serious and culpable breach. The Statute lists seven breaches that can justify it:
| Ground | Examples and nuances |
|---|---|
| Repeated and unjustified absences or lateness | Unjustified absences or continual lateness. They must be repeated: many collective agreements (convenios colectivos) specify how many absences in a given period are serious or very serious. |
| Indiscipline or disobedience | Refusing to follow work instructions. The instruction must be legitimate: you are not obliged to obey an illegal, dangerous or degrading order. |
| Verbal or physical abuse | Insults or assaults against the employer, colleagues or family members who live with them. The context is taken into account: an isolated outburst in an argument is not the same as an assault. |
| Breach of contractual good faith or abuse of trust | Keeping money or materials, falsifying data or competing with the company. It is the ground most often relied on and the most disputed in the courts. |
| Continued and deliberate drop in performance | Deliberately lowering your performance. It has to be continued, voluntary and measured against normal or agreed performance. |
| Habitual drunkenness or drug addiction | Only if it is habitual and has a negative impact on work. |
| Harassment | Discriminatory harassment, sexual harassment or harassment on grounds of sex against the employer or colleagues. The company also has a duty to protect the victim. |
In addition, most collective agreements have a system of misconduct and sanctions that classifies conduct as minor, serious and very serious. Dismissal is the maximum sanction and, in general, is reserved for very serious misconduct.
Serious and culpable: why it is not enough for the fact to exist
The fact that your conduct fits one of those grounds is not enough for the dismissal to be fair. The courts assess case by case whether the breach is sufficiently serious and culpable to justify the harshest sanction, and they take into account circumstances such as these:
- Your length of service and whether you have a clean record or previous sanctions.
- Intent: a mistake is not the same as a deliberate breach.
- The actual harm to the company.
- Whether the company had previously tolerated that same conduct without saying anything.
For example, an isolated instance of lateness does not usually justify a dismissal, whereas repeated lateness after written warnings can. If the judge considers that the misconduct exists but is not that serious, the dismissal is declared unfair. Nor can the same act be punished twice: if you have already been reprimanded for something, you cannot later be dismissed for that same thing.
Formal requirements: what the dismissal letter must say
- In writing: the dismissal must be notified in a letter, not verbally.
- Specific facts: the letter must describe what you are accused of in enough detail for you to be able to defend yourself (what you did, when and where). Generic phrases such as “poor performance” or “loss of trust”, without facts, greatly weaken the company’s position, because at trial it can only defend the facts it put in the letter.
- Effective date: the day on which the contract ends.
- Requirements of the collective agreement: the agreement may require other steps.
- Representatives and union members: if you are a legal representative of the workers or a trade union delegate, the company must open an adversarial disciplinary procedure (expediente contradictorio); if you are a member of a trade union and the company knows it, it must first give the trade union delegates a hearing.
If the company does not comply with these formalities, the dismissal is unfair. It can, however, carry out a new dismissal that corrects the defect within 20 days of the first one, paying you the wages for the days in between.
The worker’s prior hearing
Since Spanish Supreme Court judgment 1250/2024 of 18 November 2024, the company must give you the opportunity to defend yourself against the allegations before dismissing you for reasons related to your conduct, in application of Article 7 of ILO Convention 158. The requirement applies to dismissals after that judgment and allows exceptions where the company cannot reasonably be expected to do so. The consequences of skipping this step are still being defined by the courts, so it is advisable to have a lawyer review your specific case.
Time limits: when misconduct becomes time-barred
The company cannot dismiss you for something that happened a long time ago. Under Article 60.2 of the Statute, misconduct by the worker becomes time-barred as follows:
| Type of misconduct | Time limit from when the company becomes aware of it | Absolute limit |
|---|---|---|
| Minor | 10 days | 6 months from when it was committed |
| Serious | 20 days | |
| Very serious | 60 days |
If the company knew about the facts and let the time limit pass, the dismissal cannot be based on them. For conduct that is repeated over time, the courts usually count the time limit from the last incident, and where the misconduct has been concealed, from when the company discovers it; every case has its nuances.
Fair, unfair or null and void: what you are entitled to
- Fair (procedente): the company proves the facts in the letter and complies with the formalities. The contract ends without compensation, but you still receive the final settlement, known as the finiquito (outstanding pay, the proportional part of the extra payments and untaken holidays), and you can apply for unemployment benefit (paro) if you meet the contribution requirements.
- Unfair (improcedente): the facts are not proved, they are not serious enough or the form is defective. The company chooses between reinstating you with back pay for the interim period (salarios de tramitación) or paying you compensation of 33 days’ pay per year worked, up to a maximum of 24 months’ pay.
- Null and void (nulo): the dismissal is discriminatory, a reprisal for claiming your rights or affects protected situations, such as pregnancy or certain types of leave and reduced working hours. It entails reinstatement and payment of the wages you have not received.
It may happen that the company uses the disciplinary route with a vague letter and, at conciliation, acknowledges that the dismissal is unfair and offers the compensation. How that compensation is calculated and what steps to take is explained on the dismissal lawyer page.
How to review your disciplinary dismissal letter
Before deciding whether to claim, go through the letter with these questions:
- Does it describe specific facts, with dates, or only general phrases?
- Are the facts true and can the company prove them?
- Have the time limits passed since the company became aware of them?
- Were you given the opportunity to explain yourself before being dismissed?
- Does the conduct fit the misconduct defined in your collective agreement, and is dismissal proportionate to it?
- Does the dismissal coincide with sick leave, a pregnancy, a request for reduced working hours or a claim of yours? If so, it could be null and void.
Bear in mind that there are only 20 working days to challenge the dismissal, counting from the following day, and that before the claim you must file the conciliation request (papeleta de conciliación). Knowing your employment rights helps, but the assessment of the evidence is what decides the case. If you have been handed a disciplinary dismissal letter, you can tell a dismissal lawyer about your case: we will put you in touch with an English-speaking specialist employment lawyer who will review it and tell you whether it is worth challenging.
Frequently asked questions
Can I be given a disciplinary dismissal for being on sick leave?
Being on sick leave is not a breach. Since Ley 15/2022, illness has been a prohibited ground of discrimination, so a dismissal motivated by the sick leave itself may be declared null and void. It is a different matter to carry out activities during sick leave that are incompatible with your recovery, which the company may regard as a breach of good faith.
How many absences justify a dismissal?
The law does not set a number: it refers to repeated and unjustified absences. Many collective agreements specify how many absences in a given period are serious or very serious, so check yours.
Am I entitled to unemployment benefit after a disciplinary dismissal?
Yes. Any dismissal, including a disciplinary one, counts as a legal situation of unemployment; you need to have paid contributions for the minimum period required. Challenging the dismissal does not stop you from receiving the benefit.
Is it worth bringing a claim for unfair dismissal?
It depends on what the letter says and on the company’s evidence. Prior conciliation is compulsory and often ends in a settlement, and at first instance, in general, the worker does not pay the company’s costs unless there is bad faith or recklessness. An employment lawyer can assess it before the 20 working days pass.
