Dismissed without being heard first: the dismissal is unfair
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You can sue for unfair dismissal before the Social Section of the Tribunal de Instancia (the first-instance court). You have twenty working days from the dismissal, a lapse period interrupted only by the conciliation request. If the letter came with no chance to be heard and without the file your collective agreement requires, its form fails article 55.1 ET and the dismissal must be declared unfair.
You are called into an office at nine in the morning, handed a disciplinary dismissal letter for poor performance and asked to sign the acknowledgement. Nobody asked you anything beforehand: no meeting, no written warning, no request for an explanation. You have been with the company six years, you belong to a trade union and the membership fee is deducted from your payslip every month. The letter mentions two incidents with no dates and a clause of the collective agreement you had never read. They tell you the final settlement will be paid in.
The case, in five lines
- What is brought
- Unfair dismissal action based on the formal defect in article 55.1 ET, seeking a declaration that the dismissal is unfair because its form does not meet what that provision requires.
- Before which court
- The Social Section of the Tribunal de Instancia (the first-instance court) where you worked or where the defendant is based, after conciliation before the public mediation, arbitration and conciliation body.
- Deadline
- Twenty working days, a lapse period running from the day after the dismissal took place, excluding Saturdays, Sundays and public holidays at the court's seat. Bringing the conciliation request interrupts that period.
- Who can bring it
- The dismissed worker. If you were a legal employee representative or a union delegate, the formal defect is even clearer, because the law then requires a contradictory internal file.
- Financial risk
- If the dismissal is upheld as fair, the termination stands with no compensation, and at first instance in the social courts the worker is not ordered to pay costs. The company may redo the dismissal, curing what it omitted, within the twenty days following the first one.
The form of the dismissal decides the outcome, not just the facts
Article 55.4 ET says something many employers overlook: a dismissal is unfair when the alleged breach is not proven, but also when its form does not meet what paragraph 1 requires. Those are two separate doors. You may lose the argument about the facts and still win the case because the letter, or the step that should have preceded it, was defective.
Paragraph 1 of that same article requires the dismissal to be notified in writing, stating the facts that motivate it and the date it takes effect. A letter that merely invokes poor performance or loss of trust, without telling what you did, when and where, does not meet that requirement. A vague letter also conditions the whole hearing that follows.
That is why the first thing we do when we take the case is not to argue whether you committed the misconduct, but to take the document apart: which facts it imputes, on what dates, which clauses of the collective agreement it invokes and what steps the company should have taken before signing it. The whole strategy comes out of that analysis, and often so does the win.
Your collective agreement may require a file nobody opened
Article 55.1 ET expressly allows a collective agreement to set further formal requirements for dismissal. Many sector agreements impose a written statement of charges, a period to reply or a hearing before a committee. If your agreement contains such a clause and the company did not comply with it, that failure feeds into article 55.4 and drags the dismissal into unfairness.
The statute adds two cases of its own. If you were a legal employee representative or a union delegate, a contradictory internal file must be opened, in which you and the other members of your representative body must be heard. And if you belonged to a union and the employer knew it, it had to give a prior hearing to the union delegates of that union branch.
That second case is won on a domestic detail: the union fee deducted from your payslip. If the company was deducting and transferring it, it knew you were a member and cannot plead ignorance. We secure the payslips for the months before the dismissal before writing a single line of the claim, because they prove the employer knew about your membership.
The prior hearing under ILO Convention 158 entered the debate in 2024
The Social Chamber of the Tribunal Supremo (the Spanish Supreme Court), in judgment 1250/2024 of 18 November, opened the way to requiring that the worker be heard before a disciplinary dismissal, relying on Convention 158 of the International Labour Organization, ratified by Spain. Until then the usual practice was to hand over the letter with no previous conversation, and nobody questioned it.
The exact scope of that doctrine is still being shaped in the higher courts, which is why the analysis cannot be done from memory or with a template. We check the date of your dismissal, the sector, the applicable collective agreement and the case law of the Social Chamber of the Tribunal Superior de Justicia (the regional high court) of your region, and from that we decide how much weight this ground carries.
In practice this ground rarely travels alone. It is built alongside the examination of the letter and of the collective agreement, so that the claim offers the court several routes to the same outcome. A dismissal case is not won with one brilliant argument, but with three grounds ordered by strength and framed so that none of them weakens the one before.
The company has twenty days to redo the dismissal properly
Article 55.2 ET allows an employer who dismissed badly to carry out a new dismissal complying with the requirements it omitted, always within the twenty days following the first one. That second dismissal takes effect only from its own date, and the company must make available to you the wages for the intervening days and keep you registered with Social Security during them.
The practical consequence is one of timing. If you or someone close to you announces the formal defect to the company inside that window, you are handing it the chance to cure it. That is why an improvised written complaint, an angry email to the manager or a message to the personnel department can lose the case before the case even exists.
Our rule is simple: between the day of the dismissal and the end of that window, communication with the company is in writing and limited to the essential. Conciliation and the claim come afterwards, once the defect is settled. It is a strategic decision taken at the first meeting, not once three emails have already gone out.
Twenty working days, and Saturdays do not count
Article 59.3 ET provides that the action against dismissal lapses twenty days after it took place, that those days are working days and that the period is one of lapse for all purposes. Article 103.1 LRJS confirms this and specifies that Saturdays, Sundays and public holidays at the seat of the court are not counted.
Lapse is not prescription. It is not interrupted by a letter to the employer or by a complaint to the Labour Inspectorate. The only act that interrupts it, under article 59.3 itself, is bringing the conciliation request before the competent public mediation, arbitration and conciliation body. Once the twenty days have passed there is no claim to be brought, however strong the case was.
There is one rescue provision. Article 103.2 LRJS states that if the claim was brought against someone wrongly taken to be the employer, and it is later shown that a third party was, time does not start running until it is established who the employer is. This matters in company groups, labour supply arrangements and subcontracting chains where one company signs the payslip and another gives the orders.
At the hearing the company speaks first, tied to its own letter
Article 105.1 LRJS reverses the natural order of the hearing: once the claim is ratified, the defendant must state its position first, in submissions, in evidence and in closing. It also bears the burden of proving that the facts imputed in the dismissal letter, as justification for it, are true. You do not have to prove your innocence.
Paragraph 2 closes the circle: to justify the dismissal, the defendant may not raise grounds of opposition other than those contained in the written communication. A company that drafted a vague letter cannot fill it in at the hearing with new facts, or bring a witness to recount episodes the letter never mentions. What is not written does not get in.
That is why a vague letter is a procedural gift. The less specific the document, the less room the company has at the hearing and the easier it is for the court to find the alleged breach unproven. When we prepare the examination of the company's representative, the letter is the script: every question aims at a fact the document failed to pin down.
How we run the case, step by step
- 1
Fixing day zero and counting the twenty working days
We establish the exact effective date of the dismissal from the letter, discount Saturdays, Sundays and holidays at the court's seat and give you the deadline in writing. Everything that follows is planned backwards from that date.
- 2
Auditing the letter, the collective agreement and your union membership
We compare the imputed facts against the requirements of article 55.1 ET, look in the applicable collective agreement for a statement of charges or a hearing, and check your payslips to see whether the company deducted the union fee and therefore knew of your membership.
- 3
Bringing the conciliation request and stopping the clock
We bring the request before the public mediation, arbitration and conciliation body, the only act that interrupts the lapse period in article 59.3 ET. We attend the meeting with a settled position and the financial assessment already made.
- 4
Suing before the Social Section of the Tribunal de Instancia
We draft the claim ordering the grounds by strength: the formal defect in the letter, the breach of the collective agreement's requirements and the lack of a prior hearing. We also request the documents the company must produce and propose witness evidence.
- 5
The hearing: letting the company speak first
At the hearing the company presents and proves first, tied to what it wrote in the letter. Our job is to stop it widening the facts, to pin down in cross-examination what the document left vague and to close on the formal defect in submissions.
- 6
Judgment, enforcement or appeal
If the judgment declares the dismissal unfair, we monitor the deadlines for the employer's election and the enforcement of what was awarded. If it is adverse or only partly favourable, we assess an appeal to the Social Chamber of the Tribunal Superior de Justicia and its real cost.
The evidence that decides the case
- The original dismissal letter, with the date of delivery and the acknowledgement you signed, even if you signed it under protest.
- The applicable collective agreement, with the clause governing misconduct and the one imposing a statement of charges, a period to reply or a prior hearing.
- The payslips for the months before the dismissal, showing the union fee deduction that proves the company knew of your membership.
- The emails, messages and meeting invitations from the last month, showing there was no meeting and no request for explanations before the letter.
- The employment contract and the last twelve payslips, to fix your length of service and the reference salary beyond argument.
- The conciliation request stamped with the date it was presented, which proves the lapse period was interrupted.
What closes the door
- Letting the twenty working days run while waiting for the company to pay the final settlement or answer an email. Once the period expires the action lapses and cannot be revived.
- Complaining to the company in writing about the formal defect within the twenty days after the dismissal. You are telling it how to redo the dismissal properly under article 55.2 ET.
- Signing a full and final settlement with an express waiver of any dismissal claim, adding no reservation and without having it read by someone who understands it.
- Building the whole defence on denying the facts and not raising the formal defect, when article 55.4 ET allows you to win on either of the two routes.
- Losing the letter, giving it back or refusing to sign the acknowledgement without keeping a copy. Without that document the case is fought blind, on ground the company chooses.
The law that applies
- Art. 55 ET. It requires the dismissal to be notified in writing with the facts motivating it and its effective date, allows the collective agreement to add formal requirements, imposes a contradictory file for employee representatives and a hearing for the union delegates of a member, and declares unfair any dismissal whose form does not meet that provision. It also allows the dismissal to be redone within twenty days. BOE-A-2015-11430
- Art. 59 ET. It sets a twenty working day lapse period for the action against dismissal, counted from the day after it took place, and provides that the period is interrupted only by bringing the conciliation request before the competent public mediation, arbitration and conciliation body. BOE-A-2015-11430
- Art. 103 LRJS. It confirms the twenty working day lapse period and excludes Saturdays, Sundays and holidays at the court's seat from the count. It also provides that, where employer status was wrongly attributed to someone who was not the employer, time does not start running until the real employer is established. BOE-A-2011-15936
- Art. 105 LRJS. It requires the defendant to state its position first at the dismissal hearing and places on it the burden of proving that the facts imputed in the letter are true. It also bars the defendant from raising grounds of opposition other than those contained in that written communication. BOE-A-2011-15936
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
I signed for the letter. Is there anything still to be done?
Yes. Signing the acknowledgement only proves that the document was handed to you on that day, not that you accept the facts or the label. That signature actually helps you, because it fixes with certainty the day the twenty working days of article 59.3 ET start running. What does commit you is signing a final settlement with an express waiver of any dismissal claim.
The company never called me in to talk. Is that enough to win?
It is enough to open a route, not to call the case won. Article 55.4 ET declares unfair any dismissal whose form does not meet paragraph 1, and that covers the collective agreement's requirements, the file for an employee representative and the hearing for the union delegates of a member. Which of those applied to you has to be checked before announcing any outcome.
Can the company dismiss me again if I win on a formal defect?
Article 55.2 ET allows it, but only within the twenty days following the first dismissal, complying then with the requirements it omitted. That second dismissal takes effect from its own date and obliges the company to make available the wages for the intervening days and to keep you registered with Social Security during them. Once that window closes, the defect can no longer be cured.
What happens if the court upholds the dismissal as fair?
Article 55.7 ET provides that a fair dismissal validates the termination with no compensation and no wages accrued during the case. That is the scenario to put on the table at the first meeting, together with the real strength of each ground. At first instance in the social courts the worker is not ordered to pay the other side's costs, but does bear the wear and the time the case takes.
Is it worth complaining first to the Labour Inspectorate?
For the deadline, no: article 59.3 ET gives interrupting effect only to the conciliation request before the public mediation, arbitration and conciliation body. A complaint to the Inspectorate can run alongside the claim, but it does not stop the lapse period for a single day. Anyone who relies on it and lets the twenty working days pass loses the action even if the Inspectorate later agrees with them.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.