Dismissed while pregnant or after your leave: it is void

The case, in five lines

What is brought

Dismissal claim seeking objective voidness on grounds of pregnancy or protected leave (article 55.5 ET; 53.4 ET if the dismissal is for objective reasons; 14.2 ET if it is a termination during probation), accumulating, where there is prima facie evidence of the motive, protection of the right not to suffer sex discrimination in order to claim moral damage.

Before which court

The social section of the Tribunal de Instancia (the first-instance court) where you work or where the company is based, at your choice, after conciliation before your region's mediation, arbitration and conciliation service. The appropriate dispute resolution step in article 5 of LO 1/2025 is not required: it belongs to civil and commercial matters.

Deadline

Twenty working days, a lapse period running from the day after the dismissal, excluding Saturdays, Sundays and public holidays at the court's seat (articles 59.3 ET and 103.1 LRJS). The conciliation request suspends the count, which resumes on the day after the conciliation attempt, or after fifteen working days if no meeting has been held. The same applies to termination during probation and to the end of a fixed-term contract.

Who can bring it

The dismissed worker, against the employing company, or against whoever actually acts as the employer where there is a group or a transfer of workers. The protection also covers the other parent during the birth-related suspension and anyone who requests or takes the leave listed in article 55.5 ET. If the fundamental rights claim is accumulated, the Ministerio Fiscal (the public prosecutor) is always a party.

Financial risk

If the company proves the dismissal was fair for unrelated reasons, the termination stands with no wages and no compensation, except twenty days per year in a dismissal for objective reasons. At first instance the worker does not pay the company's costs; only reckless or bad-faith conduct can lead to a fine. Moral damage is lost if the claim did not plead discrimination or state a figure.

Objective voidness: it does not matter that the company did not know

Article 55.5 ET has two tiers. The first voids a dismissal that is discriminatory or breaches a fundamental right, and that motive has to be proven. The second lists cases in which the dismissal is simply void, and its letter b) covers pregnant workers from the date the pregnancy began until the birth-related suspension. In that tier nobody argues about why you were dismissed: it is enough that you were pregnant.

The Tribunal Constitucional (the Constitutional Court) has held that this protection does not depend on the company knowing about the pregnancy. Requiring it would empty the rule, because in the first weeks many women do not yet know or have not told anyone. That is why a letter or a witness claiming that nobody knew anything does not change the outcome. Lack of knowledge matters only, as we will see, for moral damage.

What decides it is a medical date: that the pregnancy had begun before the dismissal, even if you found out later. In borderline cases, with the dismissal a few days after conception, the dating from the first-trimester scan decides and, if the company disputes it, a gynaecologist acting as expert witness. With in vitro fertilisation, the Court of Justice of the European Union places pregnancy protection from the embryo transfer; before that, dismissing you because of the treatment is sex discrimination, but that motive has to be proven.

Which periods are covered: from pregnancy to the child's first year, and beyond

Letter a) of article 55.5 ET extends voidness to the suspensions for birth, adoption, guardianship or foster care, for risk during pregnancy or breastfeeding, to parental leave and to sick leave for illnesses caused by pregnancy, childbirth or breastfeeding. And it closes a well-known trap: a dismissal notified beforehand is also void when the notice period ends inside those periods. The biological mother's suspension is now nineteen weeks, under article 48.4 ET.

Letter c) protects those returning to work after that suspension, provided no more than twelve months have passed since the birth, adoption, guardianship or foster placement. The usual mistake is counting the twelve months from the return to work: they run from the birth. With nineteen weeks of suspension, the real window after returning is about seven months, and it should be calculated before treating as lost a protection that is still alive.

Letter b) adds a shield without that limit for anyone who has requested or is taking leave to care for a breastfed infant, reduced hours to care for a child or a relative, childcare leave of absence, the five-day leave for a relative's accident or serious illness or the working-time adaptation in article 34.8 ET; the last two since 3 April 2025 under LO 1/2025. With reduced hours for a four-year-old child you are still protected, and having requested them is enough: the dated request is a central piece of the case.

The company's only way out is to prove the dismissal was fair

All three letters of article 55.5 ET end with the same proviso: they apply unless the dismissal is declared fair for reasons unrelated to the pregnancy or the leave. Read carefully, the sentence removes the middle ground. If the company does not obtain a finding of fairness, what remains is not unfair dismissal with thirty-three days per year, but voidness with reinstatement. The judge cannot offer it the option of paying and walking away.

That defuses the most common formula: a generic disciplinary letter, an admission of unfairness in the same meeting and payment of compensation. That admission concedes that the company cannot prove the facts, and without proven facts there is no fairness. The same happens if the letter fails the formal requirements of article 55.1 ET: a dismissal that cannot be fair, of a protected worker, ends up void. And absences for prenatal check-ups cannot support a claim of poor performance without revealing the motive.

In a dismissal for objective reasons, article 53.4 ET raises the bar: the company must sufficiently show that the cause specifically requires terminating the protected worker's contract. The question at the hearing stops being whether there is a crisis and becomes why you and not someone else in the same role. In a collective redundancy, the Court of Justice of the European Union only accepts including a pregnant worker if the company sets out in writing reasons unrelated to her situation and the objective criteria it used to select those affected.

Probationary periods and fixed-term contracts: where cases are lost

Before the 2019 reform, the Tribunal Constitucional accepted that objective voidness did not extend to termination during probation. The current article 14.2 ET changed the ground: termination by the employer during probation is void in the case of female workers on grounds of pregnancy, unless there are reasons unrelated to the pregnancy or maternity. As the courts are still debating whether it requires the company to have known, the claim rests on the wording of the provision and, at the same time, on the evidence of knowledge.

But the first thing is to check whether the probation was valid. Article 14.1 ET requires it to be agreed in writing; absent a collective agreement it caps it at six months for qualified technical staff, two for others, three in companies with fewer than twenty-five workers and one month in fixed-term contracts of up to six months; and it voids it if you had already performed those duties in the company. A clause that does not specify the duration rarely survives judicial scrutiny either. If the agreement falls, the termination is a dismissal and objective voidness applies without qualification.

A fixed-term contract reaching its end date is not a dismissal. There are two routes. If the contract had no genuine cause (since the 2021 labour reform only production needs or replacing another worker qualify), you were a permanent employee and the end of the contract is a void dismissal. If it was valid but was not renewed because of the pregnancy, the Court of Justice of the European Union treats that as direct sex discrimination; with prima facie evidence, such as colleagues being renewed, the burden of justification shifts to the company (article 30 of Ley 15/2022).

Twenty working days, and the conciliation request does not reset the clock

Articles 59.3 ET and 103.1 LRJS set twenty working days, a lapse period running from the day after the dismissal, excluding Saturdays, Sundays and public holidays at the court's seat. Article 103.3 LRJS extends these rules to every employer decision to terminate, so the period is the same for termination during probation and the end of a fixed-term contract. Invoking a fundamental right buys no extra time, and August does not stop the clock either: the LRJS keeps that month as a working month for dismissal proceedings.

The request before your region's mediation, arbitration and conciliation service is a prerequisite under article 63 LRJS, and it stops the clock, but it does not reset it: article 65 LRJS suspends the count and resumes it on the day after the conciliation attempt, or fifteen working days after filing if the meeting has not been held. The days used beforehand are gone: anyone who files the request on day eighteen leaves the meeting with two days to sue.

The prior attempt at an appropriate dispute resolution method under article 5 of LO 1/2025, which belongs to civil and commercial matters, does not apply here: in a dismissal its place is taken by conciliation. Although the law exempts fundamental rights proceedings from conciliation, a dismissal involving a breach follows the dismissal procedure, and we always file the request: it costs one day and removes an argument. If the letter is delivered before the effective date, the twenty days run from the day after the effective date.

Reinstatement, wages and moral damage: what voidness gives and what it does not

Articles 55.6 ET and 113 LRJS attach to voidness immediate reinstatement with payment of the wages lost, from the dismissal until you return to your post. The company cannot swap reinstatement for money, and if it appeals, the judgment is provisionally enforced. If in the meantime you receive unemployment benefit, you do not repay it: the company reimburses it to the public employment service, deducting it from the wages it owes you. Claiming the benefit does not weaken the case.

Objective voidness does not by itself bring compensation for moral damage: article 183 LRJS ties it to the judgment declaring a breach of a fundamental right, and voidness based on the mere fact of pregnancy does not need that. To recover the damage you must plead and prove discrimination, because unfavourable treatment on grounds of pregnancy is direct sex discrimination. That is where it matters that the company knew, and where the message from ten days ago comes in. The mechanics of the fundamental rights claim are those of a retaliatory dismissal after a complaint, which we cover separately.

That is why the claim has two tiers: objective voidness as the main request, almost automatic with the medical report, and discriminatory voidness with compensation as an accumulated request. Once discrimination is proven, article 27 of Ley 15/2022 presumes moral damage, and article 183 LRJS allows it to be set on a prudential basis and makes it compatible with the wages. The figure is reasoned in the claim, often taking as a reference the fines that the Ley sobre Infracciones y Sanciones en el Orden Social (the law on labour and social security offences) sets for discrimination.

How we run the case, step by step

1. 1

   Fixing day zero and dating the pregnancy

   We establish the effective date of the dismissal and the last day of the period, which runs from the day after the effective date even if the letter was delivered earlier. At the same time, you ask your gynaecologist for a report stating the gestational age and the probable date the pregnancy began.

2. 2

   Securing evidence of knowledge and of the leave requests

   We preserve the messages in which you announced the pregnancy, the requests for leave, reduced hours or adaptation with their acknowledgement, the letter, the contract and the probation clause, and we obtain your Social Security employment history to spot earlier contracts and duties already performed.

3. 3

   Conciliation request and unemployment benefit claim

   We file the conciliation request with the remaining days already calculated. At the meeting we do not accept unfair dismissal dressed up as a settlement: either the company accepts voidness, or we negotiate with voidness on the table. You claim unemployment benefit without waiting.

4. 4

   A two-tier claim before the social section

   We seek objective voidness as the main claim and, accumulated with it, voidness for discrimination with moral damage quantified and reasoned, with the Ministerio Fiscal (the public prosecutor) summoned. If there was a probationary period or a fixed-term contract, we challenge its validity in the same pleading.

5. 5

   The hearing: the company has to prove fairness

   We prove the pregnancy on the date of the dismissal and let the company try to prove unrelated reasons. If the dismissal was for objective reasons, the examination focuses on why you and not someone else. If the company disputes the dating, we bring a gynaecologist as expert witness.

6. 6

   Reinstatement, wages or settlement

   With a judgment of voidness we monitor actual reinstatement on your same terms and payment of the wages, including during any appeal. If the company offers a settlement, we assess it with voidness already won or very close.

The law that applies

• Art. 55 ET. It declares void the dismissal of a pregnant worker until the birth-related suspension, any dismissal during that suspension, risk during pregnancy or breastfeeding or parental leave, that of anyone who requests or takes the leave, adaptations or leave of absence it lists, and that of anyone dismissed after returning, within twelve months of the birth, unless it is declared fair for unrelated reasons. A void dismissal requires reinstatement with payment of the wages lost. BOE-A-2015-11430
• Art. 53 ET. It applies the same voidness to dismissal for objective reasons and requires, for it to be declared fair, sufficient proof that the cause specifically requires terminating the protected person's contract. It obliges the judge to declare voidness of its own motion where the motive is discriminatory. BOE-A-2015-11430
• Art. 14 ET. It allows a probationary period to be agreed in writing, sets its limits absent a collective agreement, voids it if the person already performed those duties in the company, and declares void a termination by the employer during probation in the case of female workers on grounds of pregnancy, unless there are reasons unrelated to the pregnancy or maternity. BOE-A-2015-11430
• Art. 59 ET. It provides that the action against dismissal or the termination of fixed-term contracts lapses twenty working days after it took place, and that the period is interrupted by the conciliation request before the competent public body. BOE-A-2015-11430
• Art. 103 LRJS. It sets twenty working days, a lapse period for all purposes, to challenge a dismissal, excluding Saturdays, Sundays and public holidays at the court's seat, and extends its rules to other employer decisions terminating the contract. BOE-A-2011-15936
• Art. 113 LRJS. Where the dismissal is declared void, it orders immediate reinstatement with payment of the wages lost and provisional enforcement of the judgment even if it is appealed. BOE-A-2011-15936
• Art. 183 LRJS. Where the judge declares a breach of a fundamental right, it requires them to set compensation for moral damage and additional losses, prudentially if exact proof is too difficult or costly, and declares it compatible with whatever is due for the termination of the contract. BOE-A-2011-15936
• Arts. 27 y 30 Ley 15/2022. They oblige anyone who discriminates to make good the damage through compensation and to restore the victim where possible, presume moral damage once discrimination is proven and, where the victim provides well-founded prima facie evidence, place on the defendant the burden of an objective and reasonable justification, sufficiently proven, of its measures and their proportionality. BOE-A-2022-11589

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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