You claimed against your employer and were fired: void dismissal

The case, in five lines

What is brought

Dismissal claim with an accumulated fundamental rights protection claim, seeking a declaration of voidness for breach of the guarantee against retaliation and compensation for the harm caused.

Before which court

The Social Section of the Tribunal de Instancia (the first-instance court), through the dismissal procedural route, with the Ministerio Fiscal (the public prosecutor) always a party in defence of the fundamental right.

Deadline

Twenty working days from the dismissal, because the protection claim must be brought within the period set for the conduct in which the breach takes shape. The conciliation request interrupts the count.

Who can bring it

The dismissed worker, as the injured party. Your union and bodies whose purposes include defending the affected interests may join as supporting parties, never against your will.

Financial risk

If the court does not find sufficient prima facie evidence, the case is decided as an ordinary dismissal and voidness falls away. At first instance in the social courts the worker is not ordered to pay costs, but reinstatement means returning to an environment that was already hostile.

What is protected is not your job, but the fact that you claimed

Article 24.1 of the Constitution grants everyone the right to effective protection by the courts in the exercise of their rights and legitimate interests, and provides that no one may ever be left defenceless. The guarantee against retaliation is that right projected into the employment relationship: making a claim must not cost you, whether inside or outside the company.

Article 55.5 ET sets out the consequence: a dismissal is void when its motive is one of the grounds of discrimination prohibited by the Constitution or by law, or when it takes place in breach of the worker's fundamental rights and public freedoms. A dismissal that responds to your claim comes through that second door, the breach of a fundamental right.

The protected claim does not have to be a lawsuit. An email to the personnel department, a conciliation request, a complaint to the Labour Inspectorate or a demand made through an employee representative will all do. What matters is that there is a record that you exercised, or announced that you would exercise, a right, and that the company knew about it.

You supply the prima facie evidence, the company owes the justification

Article 181.2 LRJS shifts the burden of proof: at the hearing, once prima facie evidence of a breach of the fundamental right has been shown, the defendant must supply an objective and reasonable justification, sufficiently proven, of the measures taken and of their proportionality. It is not enough for the company to allege a cause: it has to prove it.

The commonest indicator is timing. Two weeks passed between your claim and the letter, and in five years there had not been a single earlier warning. Other indicators add to that closeness: a vague alleged cause, nobody else being dismissed, the company changing its treatment of you right after the email, or a good previous appraisal.

Our job in the claim is to build that picture of indicators with documents, not with adjectives. Each indicator is anchored in a dated paper: the email sent, the acknowledgement of receipt, the working time record, the signed appraisal, the organisation chart you vanish from. A solid picture forces the company to play its whole hand at the hearing.

The case is a dismissal case, with the protection claim inside it

Article 184 LRJS is emphatic: claims for dismissal and for other forms of termination in which a breach of fundamental rights is invoked must go through their own procedural route, with priority given to those cases and the protection claims accumulated within them. There are not two cases but one, and it runs under the dismissal rules.

That is where the deadline comes from. Article 179.2 LRJS refers to the general prescription or lapse period set for the conduct in which the breach takes shape, and that conduct is a dismissal: twenty working days. Anyone who assumes that a fundamental right buys them a year loses the action without ever arguing the merits.

Even when it runs through the dismissal route, the case keeps the guarantees of the protection chapter: article 178.2 LRJS orders those rules to be applied, including summoning the Ministerio Fiscal as a party. That changes the room. The company no longer faces a lone worker and has to explain its decision to the prosecutor as well.

Voidness is not more money: it is going back to your job

Article 55.6 ET provides that a void dismissal has the effect of immediate reinstatement of the worker, with payment of the wages not received. The company has no choice between taking you back or paying you off: reinstatement is the legal effect, and the wages run from the date of dismissal until you actually return to the job.

This is worth saying before starting. Winning voidness means going back to the company that dismissed you, alongside the people who signed the letter. For many clients that is exactly what they want, because they have seniority, conditions or a life plan tied to that job. For others it is not, and then the honest conversation is what to ask for and what to negotiate.

The bargaining value of voidness is real. A company facing reinstatement and payment of every wage for the period, plus compensation for moral harm, looks at settlement very differently from one merely arguing about unfairness. A well built voidness claim improves your position even if the case ends before judgment.

Moral harm is quantified in the claim, not in the judgment

Article 179.3 LRJS requires the claim to state clearly the facts constituting the breach, the right infringed and the amount of compensation sought, specifying the losses and the circumstances relevant to setting it: the seriousness, duration and consequences of the harm. Only moral harm that is genuinely hard to itemise escapes that detailed specification.

Article 183 LRJS is what allows that award. The court must rule on the amount of the moral harm attached to the breach and on any additional losses, setting it on a prudential basis where proving the exact figure would be too difficult or costly, so as to compensate the victim and also help prevent such harm. It is compensation with a deterrent purpose.

Its paragraph 3 adds the piece most often forgotten: that compensation is compatible with whatever is due for the modification or termination of the contract. You do not choose between them. That is why the claim asks for voidness with reinstatement and wages, and on top of that a sum for moral harm, each with its own basis and its own figure.

The case is urgent and takes priority, and that plays too

Article 179.1 LRJS requires these cases to be handled as urgent for all purposes, taking priority over all others before the same court, and appeals to be resolved with the same priority. In a jurisdiction with a crowded calendar, that priority brings the hearing and the judgment forward by months.

Article 181.1 LRJS sets conciliation and the hearing within the non-extendable period of five days following admission of the claim, with at least two days between the summons and the hearing, and paragraph 3 requires judgment within three days of it. Statutory timetables and real ones do not always match, but they set the direction.

That speed has a price worth accepting: the case is prepared in full before the claim is brought. When the hearing can be listed within days, there is no room to look for witnesses afterwards or to ask for documents that should have been requested in the pleading. All the heavy work is done inside the twenty working day period.

How we run the case, step by step

1. 1

   Rebuilding the timeline of your claim

   We fix with documents the date you claimed, the channel used, who at the company knew and what happened next. That timeline is the skeleton of the picture of indicators required by article 181.2 LRJS.

2. 2

   Securing the evidence before it disappears

   We download emails, messages and working time records while you still have access, and identify colleagues who can testify. After the dismissal, access to company systems is cut off and the evidence becomes far harder to obtain.

3. 3

   Quantifying the moral harm with a reasoned criterion

   Article 179.3 LRJS requires a figure and a reasoning based on seriousness, duration and consequences. We set it before suing, with the calculation bases written down, so it is not improvised at the hearing or left to chance.

4. 4

   Conciliation and claim within the twenty days

   We bring the request before the public mediation, arbitration and conciliation body and then the dismissal claim with the accumulated protection claim, seeking voidness, the wages lost and compensation for the harm.

5. 5

   The hearing with the Ministerio Fiscal in the room

   We first establish the indicators and let the company shoulder its objective and reasonable justification. The examination aims at one point: why you were dismissed, two weeks later, and not earlier and not somebody else.

6. 6

   Enforcing reinstatement or negotiating

   If the judgment declares the dismissal void, we monitor actual reinstatement and payment of the wages for the period. If at any point the company offers a settlement, we assess it with the voidness claim already on the table.

The law that applies

• Art. 24.1 CE. It grants everyone the right to effective protection by the courts in the exercise of their rights and legitimate interests, providing that no one may ever be left defenceless. The guarantee against retaliation for making a claim stems from that right. BOE-A-1978-31229
• Art. 55 ET. It declares void any dismissal motivated by a prohibited ground of discrimination or carried out in breach of the worker's fundamental rights and public freedoms, and attaches to that voidness immediate reinstatement with payment of the wages not received. BOE-A-2015-11430
• Art. 179 LRJS. It makes these cases urgent and priority matters, ties the deadline for the claim to the prescription or lapse period set for the harmful conduct, and requires the pleading to state the facts, the right infringed and the amount of compensation with the circumstances that determine it. BOE-A-2011-15936
• Art. 181.2 LRJS. It provides that once prima facie evidence of a breach of the fundamental right is shown at the hearing, the defendant must supply an objective and reasonable justification, sufficiently proven, of the measures taken and of their proportionality. BOE-A-2011-15936
• Art. 183 LRJS. It requires the court to rule on compensation for the moral harm attached to the breach and for additional losses, setting it prudentially where proving the exact amount would be too difficult or costly, and declares it compatible with whatever is due for the termination of the contract. BOE-A-2011-15936
• Art. 184 LRJS. It requires claims for dismissal and other forms of termination invoking a breach of fundamental rights to be dealt with through their own procedural route, as priority cases, with the protection claims accumulated within them. BOE-A-2011-15936

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

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