A dismissal is not “good” or “bad” because you or your employer say so. A judge classifies it, and that classification decides whether you get severance, go back to your job or leave with only your finiquito (final settlement). There are three possible outcomes, and each has different consequences.
Fair: the contract ends and you get no severance
Under article 55.4 of the Estatuto de los Trabajadores (Workers Statute), a disciplinary dismissal is procedente (fair) when the breach alleged in the letter is proved. Article 55.7 sets the effect: it confirms the end of the contract, with no right to severance or back pay (salarios de tramitación).
A fair dismissal does not take away unemployment benefit (paro). You still receive your finiquito, and dismissal is still a legal situation of unemployment. For an objective dismissal, being fair has a different effect: you keep the 20-days-per-year severance if you had already been paid it (art. 53.5.a).
Unfair: reinstatement or 33 days per year, at the employer’s choice
A dismissal is improcedente (unfair) when the breach in the letter is not proved, or when its form does not comply with article 55.1 (art. 55.4). Then article 56.1 gives the employer five days from notification of the judgment to choose:
- Pay severance of 33 days’ salary per year of service, with months prorated and a maximum of 24 months’ pay. This ends the contract on the date you actually stopped working.
- Take you back, with the right to back pay under article 56.2.
If it chooses neither, reinstatement applies (art. 56.3). If you are a legal workers’ representative or a union delegate, the choice is yours, and you are entitled to back pay either way (art. 56.4).
Null: immediate reinstatement and all the wages
Article 55.5 declares nulo (null) a dismissal motivated by any ground of discrimination prohibited by the Constitution or by law, or carried out in violation of fundamental rights and public freedoms. It is also null, in the cases it lists, for people whose contract is suspended for birth or adoption, risk during pregnancy or breastfeeding, and for pregnant workers from the start of the pregnancy. Likewise for those who have requested or are using certain leaves under article 37, working-time adaptations or leaves of absence, and for victims of gender or sexual violence exercising their rights.
The effect is in article 55.6: immediate reinstatement, with payment of the wages not received. There is one exception: if the employer shows the dismissal was for reasons unrelated to the pregnancy or to those rights, the judge may declare it fair. A typical case is explained in dismissal of a pregnant worker.
The three side by side
| Fair | Unfair | Null | |
|---|---|---|---|
| Who classifies it | Judge | Judge | Judge |
| Key rule | Art. 55.7 | Art. 56.1 | Art. 55.6 |
| Severance | No | 33 days per year (max. 24 months) if the employer chooses to pay | No: you go back |
| Reinstatement | No | If the employer chooses it | Always, immediate |
| Back pay | No | If reinstated | Yes, wages not received |
| Unemployment benefit | Yes | Yes | Depends on whether you return |
One worker, three judgments
Javier earns €24,000 gross a year, started on 14 October 2020 and is dismissed with effect from 14 October 2026. That is exactly 6 years and a daily salary of 24,000 / 365 = €65.75.
- Fair: €0 severance. He keeps the finiquito.
- Unfair with severance: 6 × 33 = 198 days × €65.75 = €13,019.18.
- Null: he returns to his job and receives the wages he did not get. If the case takes 4 months and his equivalent monthly salary is €2,000, that is about €8,000 gross.
The exact figure for the wages and for your length of service depends on your contract; with your real data you can get the number in the severance pay calculator. A fair objective dismissal for the same worker would give 6 × 20 = 120 days × €65.75 = €7,890.41, as explained in severance for objective dismissal.
An objective dismissal is classified with the same three labels
If you are dismissed on objective grounds, the judge also classifies it as fair, unfair or null, and the effects are those of disciplinary dismissal with some adjustments (art. 53.5). It is fair when the employer proves the ground and met the formal requirements of article 53.1; otherwise it is unfair. It is null in the same cases of discrimination, violation of fundamental rights or protected situations (art. 53.4).
The differences are in the money. If it is fair, you keep the 20-days-per-year severance the employer had to put at your disposal with the letter. If it is unfair and the employer takes you back, you must return it; if it prefers to pay severance, that amount is deducted from what you are owed. And giving no notice, or making an excusable error in the severance, does not make the dismissal unfair: it obliges the employer to pay the wages for that period or the difference (art. 53.4). Each requirement is covered in objective dismissal: grounds and letter requirements.
When reviewing an exit offer, distinguish finiquito from dismissal severance in Spain: they are separate payments.
Why your case may be different
- Your contract began before February 2012. The earlier period is calculated under other rules, in how to calculate unfair dismissal severance.
- You are a representative or union delegate. The choice between reinstatement and severance is yours.
- The judgment takes a long time. If it comes more than 90 working days after the claim was filed, the employer can claim from the State the back pay for the excess (art. 56.5).
- Your employer dismisses you again. If the first dismissal had formal defects, it can repeat it within 20 days, fixing them (art. 55.2). Check the dismissal letter requirements.
What to do depending on the classification
- If the letter has defects or the facts were not proved, note that it may be unfair and do not sign “agreed”.
- If you suspect discrimination, retaliation or a protected leave, say so in the conciliation request. Nullity changes the whole calculation.
- Count your 20 working days using the deadline to challenge a dismissal, whatever the judge decides later.
- Gather your contract, payslips, the letter and any messages.
This information is general guidance. When deadlines or money are at stake, speak to an employment lawyer (abogado laboralista) or a union.