An employee is suing your company for dismissal: how to defend it

The case, in five lines

What is brought

Opposition to the disciplinary dismissal action: the company defends the dismissal as fair on the facts in its letter and, against the claim that it is void, proves an objective and reasonable justification unrelated to any fundamental right.

Before which court

The Social Section of the Tribunal de Instancia (the first-instance court) where the work was performed or where the company is domiciled, at the worker's choice, after an attempt at conciliation before the administrative service. The requirement in article 5 of Organic Law 1/2025, which belongs to civil and commercial matters, does not apply. The appeal (suplicación) is decided by the Social Chamber of the Tribunal Superior de Justicia (the regional high court).

Deadline

The worker has twenty working days, a lapse period running from the day after the dismissal (articles 59.3 ET and 103.1 LRJS); the conciliation request suspends the count, which resumes the day after the conciliation or fifteen working days after filing. The company has twenty days from the day after the dismissal to redo it if it had a formal defect (article 55.2 ET) and five days from notice of the judgment to make its election (article 56.1 ET).

Who can bring it

The dismissed worker sues the employing company and, where relevant, other group companies if he argues that the real employer was another entity. If he is a legal employee representative or a union delegate, the election between reinstatement and compensation is his, not the company's.

Financial risk

At first instance there are no costs, except the sanction for bad faith or for failing to attend conciliation, with the other side's lawyer's fees up to six hundred euros. Unfair dismissal: thirty-three days' pay per year capped at twenty-four months' pay, or reinstatement with lost wages. Void dismissal: compulsory reinstatement with all wages and possible non-pecuniary damages. Losing the appeal adds costs with fees of up to 1,200 euros.

Before the merits, the calendar: the worker's and yours

The first defence of a company that has been sued lies in the dates. Article 59.3 ET and article 103.1 LRJS give the worker twenty working days to challenge the dismissal, excluding Saturdays, Sundays and public holidays at the court's seat, and the period is one of lapse for all purposes. Once it has run, the action is extinguished however strong the worker's case, and we check it before looking at a single piece of evidence.

The calculation hides a trap: the conciliation request does not restart the period, it suspends it. Under article 65.1 LRJS the count resumes the day after the conciliation was attempted, or fifteen working days after filing if it has not been held. If the worker used up eighteen days before filing the request, he has two left after the meeting, and a claim filed on the third day is out of time. Many lapse defences are won with a calendar and nobody raises them.

The clock also runs for you. If the letter had a formal defect (undated facts, no internal file as required by the collective agreement, or no hearing for the union delegates), article 55.2 ET allows a new dismissal curing the omission within the twenty days following the first one, paying the wages for the intervening days and keeping the worker registered with Social Security. The conciliation request often arrives inside that window and points to the defect: it is read the day it comes in.

Prior conciliation: always attend, and make offers with the numbers done

Article 63 LRJS requires an attempt at conciliation before the administrative service before any claim is filed. In the social courts the precondition in article 5 of Organic Law 1/2025, designed for civil and commercial matters, does not apply: here this meeting is the filter. Failing to attend is an expensive mistake, because article 97.3 LRJS allows the court to fine a party who stayed away without just cause and, if that party is the employer, to make it pay the other side's lawyer's fees up to six hundred euros.

Accepting that the dismissal was unfair buys certainty, but you should know what you are buying. It does not save wages for the proceedings: since 2012 they are owed only on reinstatement (article 56.2 ET), and an employer who elects compensation after the judgment does not pay them either. Statutory compensation is thirty-three days per year of service capped at twenty-four months' pay, and service before 12 February 2012 is calculated at forty-five days. What you buy is the removal of the sanction, the hearing and the risk of a void dismissal.

If the worker seeks a void dismissal, an offer based on unfairness only closes the case if he accepts it. And conciliation does not end at the administrative service: before the hearing there is another attempt before the court clerk (letrado de la Administración de Justicia), and since Organic Law 1/2025 article 84.1 LRJS allows it to be brought forward electronically, with a decree within three days if the agreement arrives digitally signed by all parties. The agreement is enforced like a judgment, so every figure and every date is drafted with that in mind.

At the hearing the company has only the letter it wrote

Article 105 LRJS requires the company to present and prove its case first, places on it the burden of proving the facts imputed in the letter and bars any other grounds of opposition. Article 108.1 LRJS declares the dismissal fair only where the breach alleged in the letter is proven. The letter written in a hurry is now your only statement of defence: it cannot be filled in at the hearing with customers, amounts or episodes it does not mention.

The other side's lawyer will plead time-bar as soon as the letter refers to old facts. Under article 60.2 ET, very serious misconduct is time-barred sixty days after the company learned of it and, in any event, six months after it was committed. For continuing misconduct, such as a series of diverted orders, time runs from the last act, and for deliberately concealed misconduct, from full knowledge. But that has to be proven: when it was discovered, how, and who knew.

The court also weighs seriousness: if the proven fact does not warrant dismissal, article 108.1 LRJS allows it to declare the dismissal unfair and authorise a lesser sanction, which may only be imposed after reinstatement and within ten days of the judgment becoming final. And for dismissals after judgment 1250/2024 of the Social Chamber of the Tribunal Supremo (the Supreme Court), of 18 November 2024, the worker must first be given the chance to answer the charges, unless the employer cannot reasonably be expected to do so.

Cameras, emails and detectives: unlawful evidence does not count

The evidence that wins a disciplinary dismissal is almost never a witness: it is a record. But article 90.2 LRJS does not admit evidence obtained, directly or indirectly, in breach of fundamental rights. If the letter rests on footage or an email obtained improperly, the dismissal falls with it, and the worker will also seek a declaration that it is void and compensation for the intrusion into his privacy.

With cameras, article 89.1 LOPDGDD (the Spanish data protection act) requires workers and their representatives to be told beforehand, expressly, clearly and concisely, that the cameras are used to monitor work. If a flagrant unlawful act is captured, it is enough that the sign warning of a monitored area was in place. Recording is never allowed in changing rooms, toilets, dining rooms or rest areas. The decisive question is not what the footage shows, but what the worker knew about that camera and which document proves it.

With corporate email, the Tribunal Supremo, in line with the European Court of Human Rights, accepts monitoring where there were rules of use, a warning that it could be inspected and a proportionate inspection, as article 87 LOPDGDD requires. A private detective is useful for what happens outside the workplace and in public places, never inside the home, and the report only counts if he confirms it at the hearing as a witness. Emails are submitted with a forensic IT report and chain of custody, because the other side will deny that they are authentic.

If the worker seeks a void dismissal, the burden of proof shifts

Article 55.5 ET declares void any dismissal that is discriminatory or breaches fundamental rights, and article 96.1 LRJS shifts the burden: if the worker provides well-founded indications, the company must prove an objective, reasonable and proportionate justification. Since 2022, article 2.1 of Law 15/2022 lists illness or health condition among the grounds of discrimination: a dismissal during sick leave is not void in itself, but sick leave followed by a weak letter is a serious indication.

In other situations no indications are needed at all. The same article declares void the dismissal of a pregnant worker, of someone on birth-related suspension, of someone who has requested or is taking certain leave and, since 3 April 2025, of someone who has requested or enjoys an adaptation of working hours under article 34.8 ET, unless it is declared fair on grounds unrelated to that circumstance. It is the rule most often overlooked: here a letter that is not proven leads not to unfairness but to a void dismissal.

The difference is measured in money and in control. A void dismissal requires immediate reinstatement with all lost wages (article 55.6 ET), with no option to pay instead, and usually brings compensation for non-pecuniary harm; an unfair dismissal gives you the election back. Outside the automatic cases, you win by showing that the decision took shape before the protected event, with warnings, appraisals and emails dated earlier. Within them, as in the situation described above, only a finding of fair dismissal helps.

After the judgment: five days, money on deposit and genuine reinstatement

Once the dismissal is declared unfair, article 56.1 ET gives you five days from notice of the judgment to make your election, and article 110.3 LRJS requires it to be made in writing or in person, without waiting for the judgment to become final. If you stay silent, article 56.3 ET treats you as having chosen reinstatement. That is why we usually announce the election at the hearing itself, as article 110.1.a) LRJS allows, and the deadline stops being a risk in the middle of a negotiation.

Reinstatement has small print. You pay the wages from the dismissal to notice of the judgment, less what the worker earned in another job if the company proves it, and anything beyond ninety working days from the claim is recoverable from the State (article 56.5 ET). If you reinstate and appeal, you pay the salary while the appeal lasts. And reinstatement on different terms ends in the enforcement proceedings of article 281 LRJS, with an additional sum of up to fifteen days per year and twelve months' pay.

Notice of appeal (suplicación) to the Social Chamber of the Tribunal Superior de Justicia is given within five days, with the three hundred euro deposit under article 229 LRJS and payment into court of the award or a joint, open-ended bank guarantee payable on first demand (article 230 LRJS). An insufficient amount can be corrected within five days; depositing nothing makes the judgment final. Whoever loses the appeal pays costs with fees of up to 1,200 euros. Appealing is a financial decision, not a reflex.

How we run the case, step by step

1. 1

   Reading the conciliation request and fixing both calendars

   We count the working days the worker used up before the conciliation request and those left afterwards, to see whether the claim has lapsed, and check whether the company is still within the twenty days in article 55.2 ET to redo a dismissal with a formal defect.

2. 2

   Auditing the letter and the evidence as the other side would

   We review which facts the letter pins down, whether any are time-barred, whether the collective agreement and the prior hearing were complied with and whether an automatic ground of nullity applies. We then classify each piece of evidence by how it was obtained and whether it will withstand a challenge.

3. 3

   Setting the position for administrative conciliation

   We calculate the statutory compensation, the cost of reinstatement and the risk of a void dismissal, and with those figures decide whether to make an offer, how much and on what terms. We always attend the meeting, even if only to reach no agreement.

4. 4

   Preparing the hearing around the burden of proof

   We commission the forensic IT report, summon the direct witnesses and the detective to confirm his report, gather the chronology preceding the protected event and prepare the election between reinstatement and compensation so it can be announced at the hearing.

5. 5

   Defending the letter at the hearing, and nothing but the letter

   We plead lapse first where it applies, prove the facts in the letter keeping strictly to them and neutralise the indications of nullity with the objective justification. Where there is room, we first attempt a settlement before the court clerk.

6. 6

   Electing, appealing or reinstating properly

   After the judgment we control the five-day election period, assess the appeal with its deposit, payment into court and costs risk and, if the worker is reinstated, organise a return on the same terms that avoids proceedings for irregular reinstatement.

The law that applies

• Art. 55 ET. It requires a letter with the facts and effective date and allows the dismissal to be redone within twenty days if a formal requirement was missing. It is fair if the charges are proven and void if discriminatory, in breach of fundamental rights or affecting pregnancy, leave or adapted hours without being found fair, with reinstatement and wages. BOE-A-2015-11430
• Art. 56 ET. Once the dismissal is declared unfair, the employer elects within five days between reinstatement, with lost wages, and paying thirty-three days per year capped at twenty-four months' pay. Without an election, reinstatement applies; a representative makes the election himself; wages beyond ninety working days are claimed from the State. BOE-A-2015-11430
• Art. 96 LRJS. If the claimant's submissions show well-founded indications of discrimination or of a breach of a fundamental right, the defendant must provide an objective and reasonable justification, sufficiently proven, for the measures taken and their proportionality. BOE-A-2011-15936
• Art. 97 LRJS. It allows the judgment to penalise a party who failed without just cause to attend conciliation or mediation, who acted in bad faith or recklessly, or where the award essentially matches the conciliation request; if that party is the employer, it also pays the other side's lawyer's or labour adviser's fees up to six hundred euros. BOE-A-2011-15936
• Art. 105 LRJS. At the dismissal hearing the defendant presents first and must prove that the facts imputed in the letter are true; to justify the dismissal it may not rely on grounds other than those contained in the written communication. BOE-A-2011-15936
• Art. 110 LRJS. It allows the election between reinstatement and compensation to be announced at the hearing, requires it to be exercised in writing or in person within five days of notice without waiting for finality and, where unfairness was due to formal defects and the worker was reinstated, allows a new dismissal within seven days. BOE-A-2011-15936
• Art. 230 LRJS. To appeal an order to pay money, the appellant must prove, when giving notice of appeal, that the award has been paid into court or secured by a joint, open-ended bank guarantee payable on first demand. Without it the appeal is treated as never filed; an insufficient amount can be corrected within five days. BOE-A-2011-15936
• Art. 89 LOPDGDD. It allows video surveillance for monitoring work if workers and their representatives are told beforehand, expressly, clearly and concisely; for a flagrant unlawful act the sign warning of a monitored area is enough, and recording is prohibited in changing rooms, toilets, dining rooms and rest areas. BOE-A-2018-16673

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

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