SPAIN Law and Practice Contributed by: José Antonio Segovia, A&O Shearman
7.2 Notice Periods The dismissal process and the notice period involved will differ depending on the status of the dismissed employee(s), the grounds for the termination and the number of employees impacted.
• Reinstate the employee, in which case the employ - er must pay to the employee their salary accrued from the date of dismissal up to the date of rein - statement. In the case of an objective dismissal, the employee would have to return the severance package made. • Pay the employee compensation equal to 33 days’ salary per year of service (subject to a limit of 24 months’ salary) for the period of service accrued as from 12 February 2012 and equal to 45 days’ salary per year of service (subject to a limit of 42 months’ salary) for the period of service up to 12 February 2012. In the latter case, the resulting sev - erance payment cannot be higher than an amount equal to 720 days’ salary unless the amount resulting from the calculations corresponding to the first tranche (ie, the calculation of severance corresponding to the period from the start date to 12 February 2012) is higher, in which case the said amount shall apply but it may not be higher than an amount corresponding to 42 months’ salary. The choice between the two above options will belong to the employee if they are an employee representa - tive. Collective Dismissal Process Royal Decree 608/2023, of 11 July, introduces a new requirement for companies planning to close a work - place where this would entail a collective dismissal of 50 or more employees. The company must notify the competent labour authority and the Ministry of Labour and Social Economy at least six months in advance. This notification must be submitted elec - tronically. If it is not possible to meet the six-month notice period, the company must notify as soon as possible and justify the reasons for the delay. Addi - tionally, a copy of the notification must be sent to the most representative trade unions and to those repre - senting the relevant sector, both at the national level and within the autonomous community where the affected workplace(s) are located. Collective dismissals can only be implemented follow - ing a formal statutory procedure. The main aspects of this procedure are as follows.
Individual Dismissal Disciplinary dismissal See 7.3 Dismissal for (Serious) Cause . Objective dismissal
The employer must communicate the dismissal to the employee in writing, which should include a detailed description of the grounds. Statutory notice must be served (or longer if contractually agreed). Alternatively, the company may pay the employee a sum of money in lieu of notice. On the date of communication of the dismissal, the employee shall be entitled to statutory compensation equivalent to 20 days’ salary per year of service, up to a maximum of 12 months’ salary. Should the termination be based on technical, eco - nomic, organisational or production reasons, a copy of the notice of communication must be provided to the employees’ representative, if one has been appointed. Qualification of individual dismissals The employee may take their case to the labour courts to challenge the grounds or reasons given by the employer for the dismissal or contend that the facts do not justify it. The competent labour court may deem the dismissal as one of the following. • Fair – the court considers the dismissal justified. • Unfair – the court considers that the dismissal was not justified. • Null and void – the court considers that the dis - missal was based on grounds that violated the employee’s fundamental rights; therefore, the employer must reinstate the employee and pay their salary accrued from the date of termination up to the reinstatement date as well as, possibly, damages. If the court deems the dismissal unfair, the employer is permitted to do either of the following.
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