Seniority in Spain once an unfair dismissal has been declared
Before we analyse the issue in depth, we must recall that for cases in which the dismissed worker is not a representative of the workers and the dismissal is declared unfair by Spanish courts, it will be the company (not the employee) that can choose between reinstatement of the worker or payment of legal compensation for the unfair dismissal.
This article focuses on when a company chooses to reinstate the dismissed worker after the declaration of unfair dismissal.
Is seniority computable for the period between the dismissal and the judgment declaring the dismissal unfair?
To answer this question, we must take into account the provisions of the Judgement of the Supreme Court 4th Chamber, of 20 October 2015, which briefly establishes the following points:
- It cannot be understood that the dismissal is constitutive in nature and results in breaking the contractual relationship. The period between the dismissal and the judgment that declares the unfair dismissal must be computable for seniority purposes.
- Only through the reinstatement of the worker will the employment relationship be resumed, and therefore, the worker has the right to count, for seniority purposes, the period between the dismissal by the company and the date of the judgement declaring the dismissal unfair.
What happens if the reinstated worker is not incorporated into the worker’s previous position?
In this case, Article 299 of the Regulatory Law of Social Jurisdiction (LRJS) determines that the worker will lose, definitively, the right to wages earned from the date of the judgement.
Under the above Article, the time from the date of the ruling declaring the unfair dismissal is not taken into account towards seniority.
Monika Bertram
Mariscal Abogados, Spanish lawyers in Madrid, Spain
Member of Eurojuris España, international network of law firms
