In the workplace, many workers and employers have received or received a letter of dismissal, but few are aware of the importance of this document and the formal requirements it must fulfil.

What is a letter of dismissal?

This is a document in which the employer notifies the employee of the termination of his or her employment contract. This letter is an essential requirement for both objective dismissal and disciplinary dismissal.

Why is the letter of dismissal crucial?

The letter of objective dismissal is the essential written communication for the worker:

  • Know the specific reason for the dismissal, so that you can challenge it if necessary. .
  • Exercise your right of defence, avoiding ambiguities

The lack of precision in the letter often results in the dismissal being declared unfair ─ with compensation or reinstatement ─ or even null and void if it violates fundamental rights.

What requirements must the letter of objective dismissal fulfil?

In this case, written communication to the employee is required, stating the specific reason for the dismissal. The employer must give 15 days' notice., The period of time from the delivery of the communication to the termination of the employment contract shall be calculated from the date of delivery of the communication until the termination of the employment contract.

It must also make available the 20 days' severance pay per year of service, The periods of less than one year and with a maximum of twelve monthly payments shall be prorated by months, unless the company's situation does not allow it, in which case this circumstance shall be stated in the communication, which may be delivered once the dismissal has become effective, i.e., after the aforementioned period of fifteen days has elapsed.

This type of dismissal is justified by economic, technical, organisational, productive, supervening ineptitude or lack of adaptation causes.

The requirements to be met by the letter of objective dismissal as regards the expression of the cause of termination must be the same as those required for disciplinary dismissal - which will be analysed in subsequent lines -, it being understood that the reference to ‘...' must be included in the letter of objective dismissal.‘’cause’contained in Article 53 ET is equivalent to ’‘...’''.’facts’referred to in Article 55 of the same legal text.

The specification of the cause of dismissal is essential for the worker to be able to challenge it, therefore, the content of the letter has to be sufficiently clear and expressive. When Article 53 ET speaks of ‘.‘’cause’.’’refers to the specific difficulties or negative economic situations of the undertaking invoked by the employer to justify its decision to dismiss. In no case to the generic type of cause of dismissal (e.g. restructuring of the workforce, change in products or production processes), nor to the remote cause generating the difficulties or negative situations of the company in which the dismissal takes place (e.g. economic crisis or new technologies). 

In short, the content of the letter must enable the employee to understand without any doubt the scope of the facts that lead to the termination of his or her employment relationship.

At this point it should be pointed out that the declaration of bankruptcy does not in itself determine the existence of a cause for objective dismissal, which means that in this specific scenario the letter will have to express the concrete and specific facts that have forced the company to take this termination measure.

What about disciplinary dismissal?

On the other hand, in this case, the law does not require the company to give the 15-day notice period mentioned in the previous case. It turns out it is sufficient for the written notice to state the date on which the dismissal will take effect, and to specify the facts on which such a decision is based.

As we can see, also in disciplinary dismissal, it is essential to specify the facts insofar as it constitutes the disciplinary reproach that the employer makes to the worker, and, at the same time, it implies for the worker his guarantee of defence, as article 105.2 LRJS establishes that, in order to justify the dismissal, the defendant will not be admitted in the trial other grounds for opposing the claim than those contained in the written communication of the dismissal.

The case law on the proper factual relationship in the letter of dismissal is reiterated in the sense that the written communication provided to the employee must enable him/her to have a clear, sufficient and unequivocal knowledge of the facts of which he/she is accused, The undertaking must specify the material circumstances and time details of the contractual breaches attributed to it.

When the communication contains only generic and indeterminate allegations, the company is placed at an advantage, which in turn limits the employee's defence when preparing the means of proof in the event of challenging the dismissal.

Although the most controversial point in the letter of dismissal is the expression of the cause or specification of the facts, it should not be forgotten that should also include other elements which are listed below in the order in which they should appear in the above-mentioned letter:

Particulars to be included in the letter of dismissal

  • Company name and details;
  • Place and date on which the letter is delivered;
  • Data of the worker;
  • A cordial greeting to the employee in which the purpose of the letter (dismissal) is communicated;
  • Date on which the dismissal takes effect (in the case of disciplinary dismissal this may be the same as the date on which it is delivered);
  • Facts that motivate the dismissal and the corresponding qualification in accordance with the Collective Bargaining Agreement applicable and the Workers' Statute;
  • Signature of the employee and company stamp.

What are the consequences of the lack of clarity of the facts in the letter of dismissal?

In the vast majority of cases, it can lead to the latter being declared inadmissible by the competent court, which means that the company must opt, within five days of notification of the judgment, to reinstate the worker, paying him or her the wages for processing, or to pay compensation equivalent to 33 days per year of service, pro rata by month for periods of less than one year, up to a maximum of 24 monthly payments (as of 12 February 2012). Another of the possible consequences is that the dismissal is declared null and void, This would entail the immediate reinstatement of the worker with payment of the lost wages.

Guidelines for the letter of dismissal to meet the requirements

  • Use clear and direct language.
  • Provide accurate figures, dates and details.
  • Attach or explain compensation calculations.
  • Sign the letter and record the delivery.
  • Ensure effective delivery: including by registered mail with acknowledgement of receipt if physical delivery is not possible.

In conclusion, the letter of dismissal is one of the most important documents when formalising the termination of an employment relationship, both from the point of view of the employer and the employee.. The former can avoid subsequent legal problems (such as the declaration of unfairness or nullity of the dismissal) together with the monetary consequences that both scenarios entail; and the latter allows you to have an exact knowledge of the facts, having the possibility of claiming against the company in case you are not satisfied with them or with the qualification that has been given to you.

For this reason, it is essential to have appropriate and specialised advice to achieve the most advantageous result in each specific case. At MARTINEZ SANZ ABOGADOS we have experience in handling these types of matters and we provide our clients with the confidence they need together with the best possible defence.