Although employees can defend themselves, it is advisable to seek legal representation. Due to the short deadlines in employment law and the fact that the employer is usually required to bear the legal costs in the event of an unlawful or invalid dismissal, it is best not to take any unnecessary risks. Nevertheless, a brief overview is provided below.
If the employee has been dismissed, they must first apply for conciliation proceedings. It is irrelevant whether they were given written notice of dismissal or whether the dismissal was merely verbal and they were subsequently denied access to their workplace.
Conciliation proceedings
Conciliation proceedings are initiated by filing a simple conciliation claim or a conciliation application. Since the executive authority in this matter lies with the Comunidades Autónomas, i.e. the autonomous communities of Spain, the regional government also determines which institutions are specifically responsible for handling and implementing the procedure. The correct contact person can therefore simply be obtained from the respective provincial government.
However, it is important to note the very short deadlines in labour law proceedings.
The application must be submitted within a period of 20 working days (excluding Saturdays [in accordance with the decision of the Tribunal Supremo of 23 January 2006], Sundays and public holidays) from the date of termination.
The 20-day limitation period is suspended upon submission of the application for conciliation proceedings. If the conciliation hearing is unsuccessful or if 15 working days have passed since the submission of the application without the conciliation hearing having been held, the suspended period shall resume on the following day. In any case, however, if no hearing has been held within 30 days, the conciliation procedure shall be deemed to have been unsuccessful.
In the conciliation procedure, the authority invites the parties to a hearing.
An agreement may be reached at this hearing, in which case the consequences shall be governed by the agreement reached there. If no agreement is reached, the employee must file a claim with the labour court. This must be done within the remaining period of the 20 days mentioned at the beginning. The days that have elapsed between the termination and the submission of the conciliation application must therefore be deducted from the total of 20 days prescribed by law. The action must be brought before the labour court within the remaining days. Verdana, Arial, Helvetica, sans-serif;‘>If the applicant fails to appear at the hearing despite being summoned and without excuse, the proceedings will be discontinued as if the application had never been filed.
If the employer fails to appear at the hearing despite being summoned and without excuse, this circumstance shall be recorded in the confirmation of the unsuccessful conciliation proceedings. In subsequent proceedings before the labour court, the costs incurred by the employee as a result of the conciliation proceedings (should the subsequent judgement be in line with their claims) will then be imposed up to an amount of 600 euros.
An action for annulment may be brought against the outcome of the conciliation proceedings (within 30 working days of its notification) (if there are grounds for annulment).
The agreements reached in the conciliation proceedings are subject to enforcement.
Proceedings before the labour court
If the conciliation procedure has been unsuccessful, the employee must file a claim with the competent labour court.
The deadline for filing a lawsuit is very short.
As already mentioned, this is only 20 working days from the date of termination. This period cannot be interrupted, only suspended. This is done by submitting an application for conciliation proceedings.
The claim must be accompanied by, among other things, a certificate confirming that the conciliation procedure has been unsuccessful. If the employee does not yet have this certificate at this point, they must submit it within 15 days at the latest.
The action must also include:
Name of the competent court and the intended form of proceedings.
Precise details of your identity, including tax number and identity card or passport number, address, witnesses with their full names and respective addresses, in the case of legal entities, their address and, if applicable, their representatives. If the claim is directed against several persons who do not have their own legal personality, the names and addresses of those persons who appear as responsible or managers must be provided.
Detailed breakdown of all circumstances that led to the termination or are cited as grounds for termination, as well as all information that could be relevant for assessing the termination under the relevant labour legislation. Important: No circumstances may be cited that were not already raised in the conciliation proceedings, unless they have occurred subsequently.
Information about the duration of the employment relationship, type of work and position in the company, salary payment arrangements, workplace, type of employment relationship, duration of the contract, working hours, any special features.
Date on which the termination took effect and the manner in which it was effected, as well as the reasons given by the employer.
Indication of whether the employee held the position of trade union representative or legal representative of the workforce in the year preceding the termination, as well as any other special circumstances that could be relevant to the declaration of invalidity or inadmissibility of the termination.
Indication of whether the employee belongs to a trade union and whether its representative, if any, was consulted in the event that the employee argues that the dismissal is unlawful.
If the employee defends himself, a summonable address within the court district must be provided.
Date and signature
Please note: If the company is in insolvency proceedings, the court responsible is the commercial court where the insolvency proceedings are being conducted, rather than the labour court.
