Inadmissible termination is not to be confused with the nullity of a termination.

While the employer has the choice of whether to reinstate the employee in the event of an unlawful dismissal or pay compensation following a successful claim by the employee, the employer must reinstate the employee in the event of a void dismissal. In addition to reinstatement, the employee may also be able to claim compensation.

So when is a termination void?

The Estatuto de los Trabajadores (Workers’ Statute) stipulates that a dismissal is null and void if it is based on discrimination prohibited by the Spanish Constitution or laws, or if it violates the employee’s constitutional rights and freedoms.

Based on this, case law has developed a widely ramified casuistry and worked out numerous case constellations in which, based on the aforementioned, terminations are to be classified as null and void.

These would be, for example, dismissals in response to the employee’s efforts to protect their rights. Dismissals that are made because the employee has testified as a witness in a lawsuit against the employer or because he has filed a complaint against the employer that is not entirely unjustified are also null and void.

The following grounds for nullity also arise directly from the law:

• Termination for employees whose contract was suspended due to parental leave, a high-risk pregnancy, risks during breastfeeding, an illness caused by the pregnancy, birth or breastfeeding, or e.g. an adoption.
• Termination during the pregnancy, i.e. from its beginning until the contract is suspended for the above-mentioned reasons.
• Dismissal of employees who take or have applied for breastfeeding breaks (for children under nine months), or who have received or requested permission to take care of their prematurely born child or a child born with a medical condition that requires hospitalization.
• Dismissal of employees who have applied for or received permission to reduce their working hours in order to care for their child suffering from a serious illness.
• Dismissal of employees who have been granted or have applied for a leave of absence in order to care for their children or family members.
• dismissal of victims of domestic violence for exercising their right to reduce their working hours, reassign them, change their place of work or suspend their employment.
• Dismissals of employees after they have returned to work following the suspension of their employment due to adoption, birth of a child, etc., provided that no more than nine months have passed since the birth, adoption, etc.