FOGASA cuts what you are owed: how to take it to court
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You can sue over the Fund's decision before the Social Section of the Tribunal de Instancia (the first-instance court) within two months of its notification, or of the day the request must be taken as granted by silence. The Fund does not pay what your judgment says but what its own statutory ceilings produce, and that is where the winnable errors are concentrated.
You won your case against the company a year ago. The judgment awarded you five months of wages and dismissal compensation, and the court then declared the company insolvent, with no account and no assets left. You applied to the Fund with all the documents and now receive a decision awarding you little more than half. It speaks of statutory limits and computable days, explains no calculation, and you cannot tell whether your length of service or your salary were applied correctly.
The case, in five lines
- What is brought
- Claim against the decision of the Fondo de Garantía Salarial (the wage guarantee fund), express or implied, seeking recognition of the wage and compensation benefits in the amount produced by a correct application of the limits in article 33 ET.
- Before which court
- The Social Section of the Tribunal de Instancia (the first-instance court). The claim does not go to the administrative courts: article 33.11 ET expressly refers it to the social jurisdiction.
- Deadline
- Two months from the day after the express decision is notified, or from the day after the request must be taken as granted by silence. Before that, the right to apply for the benefit prescribes in one year.
- Who can bring it
- Workers holding employment claims protected by the wage guarantee and, in insolvency proceedings, the company's management bodies. Representative trade unions and employers' organisations may take part in defence of collective interests.
- Financial risk
- A good share of the cuts reflect statutory ceilings correctly applied and cannot be reversed. Suing over a shortfall that is really the double minimum wage acting as a cap consumes time and does not change the figure.
The Fund does not pay your judgment: it pays its own calculation
Article 33.1 ET says the Fund shall pay workers the wages outstanding because of the employer's insolvency or bankruptcy, and that for those purposes wages means the amount recognised as such in a conciliation act or a judicial decision under the heads of article 26.1. Recognised by the court, yes, but then run through the limits of the provision itself.
That is the misunderstanding behind almost every call. The judgment sets what the company owes you; the Fund's decision sets what the Fund guarantees, always a figure worked out under its own rules. Both amounts can be correct and different, and the first thing we do is check whether the gap is a ceiling or a mistake.
The difference between the two decides whether suing is worth it. If the cut is a statutory limit properly applied, the claim will not move it and we say so. If the cut comes from length of service miscounted, a daily wage wrongly fixed or a head of pay excluded without reason, the claim has traction and is quantified before it is brought.
Two ceilings explain most of the cuts
For wages, article 33.1 ET bars the Fund from paying more than the result of multiplying twice the daily statutory minimum wage, including the proportional part of the extra payments, by the number of days of unpaid wages, up to a maximum of one hundred and twenty days. Two limits at once: the daily wage and the number of days.
For compensation, article 33.2 ET sets a maximum of one year's pay, with two express exceptions: nine months' pay in the case of article 41.3 and six for the special domestic service relationship. And it adds that the daily wage used as the basis may not exceed twice the statutory minimum wage, including the proportional part of the extra payments.
That double ceiling is why a worker on a high salary receives a fraction of what was awarded. It is not a mistake by the Fund nor arbitrary: it is the law working. Explaining it with the calculation done, figure by figure, is part of the job, because a claim against a properly applied ceiling only adds months of waiting to the payment of what is genuinely due.
The Fund's mistakes that are actually winnable
The first is length of service. Article 19 of Royal Decree 505/1985 provides that, for calculating these benefits, the years of service are those shown by the certificate of the Tesorería General de la Seguridad Social (the social security treasury) for the period registered with the debtor company, unless the worker evidences a longer period of employment. That exception is rarely used and decides many calculations.
The second is the compensation rate. Article 33.2 ET provides that, solely for payment by the Fund in cases of dismissal or termination under articles 50 and 56, compensation is calculated on the basis of thirty days per year of service, subject to the preceding limit. By contrast, rule two of article 33.3 requires them to be calculated at twenty days per year in insolvency proceedings.
Applying the insolvency rate to a case that is not one, or the other way round, changes the figure by three to two. The third is the daily wage: twice the minimum wage is worked out including the proportional part of the extra payments, and a decision that forgets this leaves out a percentage of the calculation that is recovered without argument in the claim.
Three months, positive silence and two months to sue
Article 33.11 ET requires the Fund to decide within a maximum of three months from the request presented in due form, and to notify the decision within the ten days following the date it was issued. Once that period passes with no express decision, the applicant may take the request as granted by administrative silence.
That silence has boundaries. It does not allow obligations to be recognised in favour of someone who cannot legally be a beneficiary, nor beyond the amount produced by the statutory limits, and a late express decision may only confirm the recognition within those margins. For evidential purposes a certificate of the silence produced may be requested.
The deadline to sue is two months. Article 33.11 ET counts it from the day after notification where the decision was express and, where it was not, from the day after the request must be taken as granted by silence. Article 69.2 LRJS confirms those two months from the moment the administrative stage must be taken as exhausted.
A defective notification does not start the clock
Article 69.1 LRJS requires the administration to notify decisions with their full text, stating whether they are final in the administrative stage, the appeals available, the body to file them with and the period for doing so. It is a detail almost nobody checks and which, when it fails, entirely changes the claimant's position.
Because the same provision adds the consequence: notifications which, though containing the full text, omit any of those requirements shall keep lapse periods suspended and prescription periods interrupted, and shall take effect only from the moment the interested party acts in a way showing knowledge of the content and scope of the decision, or files the appropriate appeal.
That is why, when someone arrives convinced the deadline has gone, the first thing we ask for is the envelope, the delivery notice and the full decision. A decision that does not say who to sue or within what time may have left the deadline unstarted, and a matter that looked closed is alive again.
One year to apply, and a suspicion that has to be defused
Article 33.7 ET provides that the right to apply to the Fund for payment prescribes one year after the date of the conciliation act, judgment, order or labour authority decision recognising the wage debt or setting the compensation. That period is interrupted by bringing enforcement actions or by having the claim recognised in the insolvency proceedings.
First there has to be insolvency. Article 33.6 ET defines it operationally: the employer is insolvent when, enforcement having been sought in the manner set out in the social jurisdiction statute, the employment claims are not satisfied, and the decision declaring it is issued after hearing the Fund itself. Without that prior declaration, the Fund does not even begin to examine the debt recognised.
And there is a ground of refusal worth knowing. Article 28 of Royal Decree 505/1985 requires the rejection of applications where an abuse of rights or fraud on the law is found, and those where a shared interest of workers and employers in staging an appearance of insolvency to obtain the benefits has been established. Against that suspicion, the case is won by documenting that the employment relationship was real.
How we run the case, step by step
- 1
Redoing the calculation before deciding anything
We rebuild the Fund's calculation with the minimum wage for the year, the proportional part of the extra payments, the days recognised and the applicable compensation rate. That shows whether the cut is a statutory ceiling or a challengeable error.
- 2
Checking the notification and fixing the real deadline
We check whether the decision contains the full text and the information required by article 69.1 LRJS. If any is missing, the deadline may not have started, and that check is made before writing off any matter.
- 3
Evidencing real length of service where the certificate falls short
We gather contracts, payslips and judgments evidencing a period of employment longer than the one shown by the social security treasury certificate, which is the exception the regulation itself allows.
- 4
Suing within the two months
We bring the claim before the Social Section of the Tribunal de Instancia, attaching a copy of the refusal or the certificate of silence, with the alternative calculation set out in detail and the basis for each disputed item.
- 5
A hearing with the calculation on the table
These cases are won with arithmetic, not narrative. We take to the hearing a table comparing the Fund's calculation with ours, item by item, with the provision supporting each difference and the documents that back it.
- 6
Payment and monitoring the subrogation
Once the benefit is recognised, we follow the actual payment. The Fund is subrogated to your rights for what it pays, and it is worth being clear which part of the claim against the company remains yours and which has passed to the body.
The evidence that decides the case
- The judgment, order or conciliation record recognising the debt, with the exact date from which the one-year prescription runs.
- The insolvency order issued in the enforcement, or evidence of the claim being recognised in the insolvency proceedings.
- The Fund's decision in full, with its envelope and delivery receipt, to check the content and the date of notification.
- The social security treasury certificate of the registered period, plus contracts and payslips evidencing a longer length of service.
- The last twelve payslips, to fix the daily wage with the proportional part of the extra payments included.
- The application presented to the Fund bearing its entry stamp, which marks the start of the three months to decide.
What closes the door
- Letting the year in article 33.7 ET pass while waiting to be paid by the company. By the time enforcement ends fruitlessly, the application to the Fund may already have prescribed.
- Challenging the decision before the administrative courts. Article 33.11 ET refers the challenge to the social jurisdiction, and choosing the wrong court costs you the deadline.
- Treating the silence as a refusal and doing nothing. Once three months pass the request is taken as granted, and from the next day two months run to sue.
- Suing against a correctly applied statutory ceiling. The figure will not move and the claim only delays payment of the part already recognised.
- Applying with incomplete documentation. The three months run from a request presented in due form, and an incomplete file postpones the positive silence.
The law that applies
- Art. 33 ET. It governs the wage guarantee fund: it pays outstanding wages in insolvency or bankruptcy capped at twice the daily minimum wage, extra payments included, for a maximum of one hundred and twenty days; it pays compensation recognised in a judicial or administrative decision capped at one year's pay, calculated at thirty days per year in the cases of articles 50 and 56; it defines insolvency and sets a one-year prescription for the right to apply. BOE-A-2015-11430
- Art. 33.11 ET. It requires a decision within three months of the request presented in due form and notification within ten days, allows positive administrative silence within the statutory limits, and opens the challenge by claim before the social courts within two months of notification or of the date the request must be taken as granted. BOE-A-2015-11430
- Art. 69 LRJS. It requires the administrative stage to be exhausted and notifications to carry the full text and details of the appeals, the body and the period, and provides that a notification omitting any of those requirements keeps lapse periods suspended and prescription periods interrupted. It sets two months to bring the claim from the moment that stage must be taken as exhausted. BOE-A-2011-15936
- Art. 19 RD 505/1985. For the purpose of calculating the benefits, it provides that the years of service are those shown by the social security treasury certificate for the period registered with the debtor company, unless the worker evidences a longer period of employment. BOE-A-1985-6029
- Art. 20 RD 505/1985. It recognises sufficient interest to start the recognition file in workers holding employment claims protected by the wage guarantee and in the management bodies of a company in insolvency proceedings, and allows representative trade unions and employers' organisations to take part in defence of collective interests. BOE-A-1985-6029
- Art. 28 RD 505/1985. It sets three months from the request presented in due form as the maximum period to decide at first instance and requires the rejection of applications where an abuse of rights or fraud on the law is found, and those where a shared interest of workers and employers in staging an appearance of insolvency to obtain the benefits is established. BOE-A-1985-6029
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Why does the Fund award me less than my judgment says?
Because it does not pay the company's debt but the benefit the law entrusts to it. Article 33.1 ET caps wages at twice the daily minimum wage, extra payments included, for a maximum of one hundred and twenty days, and article 33.2 caps compensation at one year's pay with that same daily wage limit. The judgment and the decision can both be right and still differ.
They have not answered in three months. What do I do?
Article 33.11 ET allows the request to be taken as granted by administrative silence, subject to the limit that silence cannot recognise more than the statutory ceilings produce, nor recognise anything for someone who cannot be a beneficiary. A certificate of the silence produced can be requested, and from the day after the request must be taken as granted, the two months to sue begin.
Do I have to go to the administrative courts?
No. Article 33.11 ET expressly provides that a claim against the Fund's decision may be brought before the competent social court within two months. It is a frequent confusion, because the Fund is an autonomous body, but the case runs before the Social Section of the Tribunal de Instancia and not before the administrative courts.
When does the year to apply for the benefit start?
Article 33.7 ET counts it from the date of the conciliation act, judgment, order or labour authority decision recognising the wage debt or setting the compensation. That period is interrupted by bringing enforcement actions or having the claim recognised in the insolvency proceedings, and by the other statutory forms of interrupting prescription.
The Fund says my employer and I staged the insolvency
It is a ground of refusal in article 28 of Royal Decree 505/1985, which requires rejection where a shared interest of workers and employers in staging an appearance of insolvency is established. The answer is documentary: contracts, payslips, contributions, work records and witnesses evidencing that the employment relationship was real and so was the debt.
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.