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Spain - Avenues for redress (penalties, remedies) and litigation procedure for individual complaints

Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - Spain - 2019    

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Compensation for unfair dismissal - free determination by court: No

  • See art. 56(1) ET.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

  • Dismissal declared unfair by the Court (a valid reason has not been given, or cannot be legally substantiated - "despido improcedente"): as from Royal Decree Law 3/2012 the employer can opt for compensation in lieu of reinstatement; 33 days' wages for each year of service up to a maximum of 24 months' pay. If the employer opts for reinstatement, he will have to provide for back pay from the date of the dismissal until the judicial decision or until the worker finds another job if that happens before the court's decision.

    - On unfair dismissal, see art. 56 ET.

Reinstatement available: Yes

  • - In the event of unfair dismissal ("despido improcedente"), the employer may choose between reinstating the employee or paying compensation for unfair dismissal (art. 56(1) ET).
    However, if the dismissed employee is a workers' representative, the choice between reinstatement and compensation shall be made by the employee. Therefore reinstatement of a workers' representative is mandatory if so requested (art. 56(4) ET).
    - Reinstatement is mandatory in the event of discriminatory dismissal or dismissal based on maternity-related grounds (art. 53(4), 55(5) and 55(6) ET.

Preliminary mandatory conciliation: Yes

  • -Art. 63 LPL: Preliminary conciliation at the competent service of the labour administration is mandatory before the dispute can reach the labour court.
    - In addition, the parties can resort to judicial conciliation at the labour court in the beginning of the proceedings, before the trial starts, see art. 84 LPL

Competent court(s) / tribunal(s): labour court

  • The Labour Courts have jurisdiction over individual labour disputes arising from the employment contract. (see the Labour Procedure Law, art. 2(a); see also the specific provisions on dismissal: art. 103- 124 LPL).
    Complaints relating to both disciplinary and objective dismissal shall be lodged within 20 days of the dismissal (art. 103 and 121 LPL).
    The Labour Courts system is organized as follows:
    The labour courts (Juzgados de lo Social) are the court of first instance for labour disputes arising at the provincial level. The employment divisions of the higher courts (Sala de lo Social de los Tribunales Superiores de Justicia) have jurisdiction over labour disputes whose scope is greater than a province, but within a region (or autonomous community), and their judgments can be appealed. The employment division of the National Court (Sala de lo Social de la Audiencia Nacional) hears labour disputes whose scope is greater than an autonomous community. The employment division of the Supreme Court hears appeals of decisions of the employment divisions of the National Court and of the higher courts.

Existing arbitration: Yes

  • "With respect to other ways of out-of-court [individual] conflict resolution processes, their establishment in the state and the Autonomous Communities was carried out through agreements between the most representative union and employers' organisations, establishing the type of mediation and the arbitration as procedures (some Communities also include conciliation). Therefore, since the early nineties procedures have been developed for resolving conflicts of this nature, first in the historical communities (Basque Country, Catalonia and Galicia), and then in all the others, and joint institutions were created normally consisting of a department or section in the Autonomic Administration. Similarly, since 1996 there has been the Agreement on the Extrajudicial Resolution of Labour Conflicts (Acuerdo de Solución Extrajudicial de Conflictos, ASEC) at the national level, signed this year and renewed in 2009 to last until 2012, by the UGT, CCOO (the unions), CEOE and CEPYME (the employers' organisations). This agreement opened the doors to the creation of the private foundation administered by the Interconfederal Service of Mediation and Arbitration (SIMA), financed entirely by the state, but managed autonomously by the social partners. Its services are free, just like those of the joint institutions of the communities, but they are distinguished as focusing only on collective conflicts." This agreement was renewed in 2012 by the V Agreement on the Autonomous Resolution of Labour Conflicts – Extrajudicial System (V Acuerdo sobre solución autónoma de conflictos laborales – Sistema Extrajudicial).

    Source: Pablo Sanz de Miguel and Maria Caprile, "Spain: Individual disputes at the workplace - alternative disputes resolution" available on the EIRO website at: