Suing for dismissal is not an administrative formality: it is a court case with a very short deadline. This article explains the whole path, from the end of the conciliation to when you are paid or return to your job. The specific procedural details (forms, summonses, appeals) depend on the labour procedure law and on your court; here you get what the Estatuto de los Trabajadores (Workers Statute) sets.
The path has four steps, in this order
| Step | What happens | Deadline or rule |
|---|---|---|
| 1. Conciliation request (papeleta) | You try a prior settlement before the mediation service | It interrupts the 20 working days (art. 59.3) |
| 2. Claim (demanda) | You file it at the employment court (juzgado de lo social) | Within the 20 working days |
| 3. Trial | Employer and worker present evidence | The employer must prove the breach alleged in the letter (art. 55.4) |
| 4. Judgment | The judge classifies the dismissal | Fair, unfair or null (art. 55.3) |
The conciliation request, step by step, is in how to file the conciliation request. And how to count the days is in the deadline to challenge a dismissal. I do not repeat either here.
The claim deadline is the same 20 days, not a new one
A common mistake is to believe a new period starts after conciliation. Article 59.3 says the action expires 20 days after the dismissal, working days, and that the conciliation request interrupts the period. When conciliation ends, you resume the days you had left. If you filed the request with 5 days used, you have 15 left for the claim.
What to ask for in the claim
The claim sets out the facts (who you are, when you started, your salary, how and when you were dismissed) and asks for a classification. The usual request is that the dismissal be declared unfair or, if you have grounds, null. If there is discrimination, a violation of fundamental rights or a protected situation such as those in article 55.5, it matters to say so from the start, because it changes the consequence: from severance to reinstatement with wages.
What to bring: the dismissal letter, contract, payslips, the conciliation request with its outcome, and messages or witnesses if the date or the facts are disputed.
At trial, the letter sets the ground
Under article 55.4, the dismissal is fair when the breach alleged by the employer in its letter is proved. It is unfair otherwise or when the form does not comply. The letter is therefore the axis of the trial: the employer has to prove what it says in it, and you can point to what is missing. The vaguer the letter, the easier it is to challenge. How to read it is in what a dismissal letter must say.
The judgment: three classifications, three consequences
The result depends on the classification:
- Fair: confirms the dismissal, with no severance or back pay (art. 55.7).
- Unfair: within five days the employer chooses between taking you back or paying 33 days per year, up to 24 months’ pay (art. 56.1).
- Null: immediate reinstatement and payment of the wages not received (art. 55.6).
The differences, with an example, are in fair, unfair and null dismissal.
Reinstatement or severance: the numbers in an example
Marta earns €30,000 gross a year (€82.19 a day), started on 2 November 2022 and the dismissal takes effect on 2 November 2026: exactly 4 years. The judge declares it unfair and the judgment is notified on 22 March 2027, 140 calendar days later.
| Employer’s choice | What Marta receives | Calculation |
|---|---|---|
| Pay severance | €10,849.32 | 4 years × 33 days = 132 days × €82.19 |
| Reinstate | Back to her job, plus €11,506.85 in back pay | 140 days × €82.19 |
Back pay (salarios de tramitación) equals the wages not received from the date of dismissal until notification of the judgment, or until you find another job if that comes first and the employer proves what you earned so it can be deducted (art. 56.2). If the employer pays severance, the relationship ends on the date you actually stopped working, and there is no back pay. For your real data, use the severance pay calculator. If you earn from another job in the meantime, that figure goes down.
When the State pays
Article 56.5 provides that if the judgment declaring unfairness arrives more than 90 working days after the claim was filed, the employer can claim from the State the back pay for the time beyond those 90 days. That affects who pays that part, not what you receive: you get your back pay either way.
Why your case may be different
- You are a representative or union delegate. The choice between reinstatement and severance is yours, and you are entitled to back pay in both cases (art. 56.4). If you do not choose, reinstatement is assumed.
- Your contract began before 2012. The earlier period is calculated under other rules.
- The employer dismisses you again. If the first dismissal had formal defects, it can repeat it within 20 days, fixing them (art. 55.2).
- You reached an agreement at conciliation. If you agree a settlement, there is no trial on what was agreed. Before signing, work out whether it is worth it.
What to do now
- Check the effective date of the dismissal and the days you have left.
- File the claim with margin, not on the last day.
- Keep the letter, contract, payslips, the conciliation outcome and any evidence.
- If the judgment is favourable, note the date of notification: the employer’s five days run from it.
This information is general guidance. When deadlines or money are at stake, speak to an employment lawyer (abogado laboralista) or a union.