A claim for unfair dismissal can be made if the reason for dismissal was not one of a number of ‘fair reasons’ (e.g. conduct, capability, "some other substantial reason", statutory ban or redundancy).
Most employees need a particular length of service to bring a claim for unfair dismissal. At present this is two years’ service. However, all employees can bring a claim for unfair dismissal if the reason for dismissal is deemed to make the dismissal automatically unfair (e.g. for whistleblowing or for family reasons such as dismissals for reasons connected to pregnancy, parental leave, or requests for flexible working).
Even if the dismissal is deemed to be for a fair reason, to avoid a successful claim for unfair dismissal the employer must still follow a fair procedure and act reasonably in dismissing the employee.
If the reason for the dismissal involves discrimination against the employee (because of a protected characteristic such as sex, race, age or disability), employees may make a discrimination claim irrespective of their length of service.
Employees with two years of service have the right to request a written statement of reasons for dismissal. Employers must provide the statement within 14 days of the request.
Irrespective of length of service, employees dismissed during pregnancy or statutory maternity or adoption leave are automatically entitled to a written statement of reasons for dismissal without having to request it.
Broadly speaking, under Spanish employment law dismissals must be based on disciplinary reasons or on objective reasons.
Disciplinary dismissals must be based on gross misconduct, defined as a significant and intentional breach of employment duties. This may include:
- Repeated and unjustified absences from work,
- Indiscipline and disobedience at work,
- Verbal or physical offences against the employer or any person rendering services in the company or their relatives residing with them,
- Breach of contractual good faith and abuse of trust at work,
- Voluntary and continued lack of normal or agreed work performance,
- Regular drunkenness or intoxication if it negatively affects the work performed, and
- Harassment due to racial or ethnic origin, religious beliefs or ideology, disability, age or sexual orientation and sexual harassment against the employer or any person rendering services in the company.
The applicable Collective Bargaining Agreement may establish additional lawful reasons for disciplinary dismissal.
Alternatively, an employee may be dismissed on objective grounds such as:
- Unexpected incompetence after hiring,
- Inability to adapt to technical changes in his / her job position,
- Redundancy due to economical, technical, organisational or production- related reasons.
In cases of permanent employment contracts, when the purpose of the employment is to provide services in relation to a public programme and there is a funding shortfall.