The grounds for nullity of dismissal are provided for as of 30 June 2023 exclusively in the Workers' Statute (Estatuto de los Trabajadores (E.T. ), given that Royal Decree-Law 5/2023 has not only introduced new grounds for objective nullity of dismissal, but also reforms the Law Regulating Social Jurisdiction (LRJS), specifically article 108 of the LRJS relating to the qualification of disciplinary dismissals has been reformed in the sense of referring to the provisions of article 55.5 of the E.T., as well as Article 122 of the LRJS regarding the classification of objective dismissals, which now refers to the provisions of Article 53.4 of the E.T.
Therefore, the general list of grounds for nullity of dismissal appears (with identical wording) in articles 53.4 and 55.5 of the E.T., a summary of which is given below:
Firstly, as a "generic cause of null and void dismissal", it will be null and void when the employer's decision to dismiss is based on any of the causes of discrimination prohibited in the Constitution or in the law, or when it has been produced in violation of the fundamental rights and public freedoms of the worker.
In other words, any dismissal that is discriminatory due to infringement of the provisions of Article 14 of the Spanish Constitution as well as contrary to the rights and public freedoms provided for in Articles 10 to 55 of the Spanish Constitution will be null and void.
In this sense, as lawyers specializing in labour law, it is worth mentioning a very common classification of null dismissal, such as that which violates the so-called "guarantee of indemnity" related to Article 24 of the Spanish Constitution (Right to effective judicial protection) in the sense of considering null that dismissal connected directly or in retaliation to the interposition or prior claim of labor rights of the worker.
Likewise, just to mention another very common case of request for nullity of dismissal, is when this occurs in a situation of temporary disability, where in certain cases it can be considered null and discriminatory due to illness in application of the doctrine emanating from the High Court of Justice of the European Union and/or because of the recent Law 15/2022 for Equal Treatment and Non-Discrimination.
Secondly, it goes on to list the so-called "objective grounds for nullity", or those which by law oblige the Social Jurisdiction in certain situations to make such a classification, if the dismissal cannot be classified as fair (situations where there is no legal possibility of a declaration of unfairness), which are as follows:
a) That of workers during periods of suspension of the employment contract due to birth, adoption, foster care, fostering, risk during pregnancy, risk during breastfeeding, as referred to in Article 45.1.d) and e) of the E.T., parental leave as referred to in Article 48 bis of the E.T., or due to illness caused by pregnancy, childbirth or breastfeeding, or when the decision is notified on a date such that the period of notice granted ends within these periods.
b) that of pregnant workers, from the date on which the pregnancy begins until the beginning of the period of suspension referred to in point a); that of workers who have applied for one of the periods of leave referred to in Article 37 of the E.T., 3.b), 4, 5 and 6, or are enjoying them, or have requested or are enjoying the working day adaptations provided for in Article 34.8 E.T. (known as "à la carte working day" and this is the most striking new feature of RDL 5/2023) or the leave of absence provided for in Article 46.3 of the E.T.; and that of female workers who are victims of gender violence for exercising their right to effective judicial protection or the rights recognized to make their protection effective or their right to comprehensive social assistance.
c) That of workers after having returned to work at the end of the periods of suspension of the contract due to birth, adoption, foster care or adoption, as referred to in article 45.1.d) of the E.T., provided that no more than twelve months have elapsed since the date of birth, adoption, foster care or adoption.
Thirdly, and as exceptions to the above general rules governing null and void dismissals, we must add the classification of null and void dismissal provided for in Article 51 of the E.T., which regulates Collective Dismissals (known as ERE), when the so-called "thresholds" or number of workers dismissed in a company for economic, technical, organizational and/or production reasons in a period of ninety (90) days are exceeded, and also add, with regard to collective dismissals, the situations or cases of nullity of collective dismissals (e.g. lack of consultation period) which are regulated in article 124 of the LRJS.
Therefore, from the Labour Law Department of BELZUZ ABOGADOS, S.L.P., as lawyers specialized in labor law, we can conclude that from the general summary of causes of invalid dismissal, whether they are generic causes for violation of fundamental rights or public freedoms, or causes of objective nullity, or particular situations of nullity linked to collective dismissals, our recommendation, in view of the extensive list of possible causes of nullity, is to obtain the appropriate legal advice when dealing with dismissals in companies, given the serious risks and significant economic responsibilities that a classification of invalid dismissal entails.
Belzuz Abogados SLP
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