Deciding to terminate an employment relationship for disciplinary reasons is never easy.
Behind every case there are people, uncomfortable conversations, and the clear feeling of walking on delicate ground.
In everyday business life, disciplinary termination tend to arise precisely when there is the least room for error: tension within the team, pressure to make quick decisions, and legal risk very much present.
In those moments, acting calmly, with sound judgment and a solid understanding of the legal framework not only protects the company, but also brings clarity and coherence to a situation that is already complex in itself.
What is legally understood as a disciplinary dismissal?
A disciplinary termination is the termination of an employment contract when a serious breach by the employee occurs.
Both elements must be present at the same time. It is not enough for the conduct to be inconvenient or annoying; it must be serious enough to break the trust that underpins the employment relationship.
In practice, this means assuming that:
- Not every mistake or isolated incident can justify a disciplinary dismissal.
- The conduct must be directly attributable to the employee, without organisational deficiencies being involved.
- The company bears the burden of proving the facts that justify the decision.
For this reason, disciplinary termination requires prior consistency in management, proportionality in the response, and a solid documentary basis.
What conduct legally allows a disciplinary dismissal?
Article 54.2 of the Estatuto de los Trabajadores establishes a closed list of grounds. This means that not every inappropriate behaviour fits within this legal figure, no matter how problematic it may be in day-to-day operations.
Among the most common grounds are repeated and unjustified absences or lateness, lack of discipline or disobedience at work, and verbal or physical offences against the employer or other employees.
Also included are breaches of contractual good faith and abuse of trust, particularly relevant in positions involving access to sensitive information or financial responsibility. Continuous and voluntary underperformance, habitual intoxication or drug addiction with a work-related impact, and any form of harassment complete the legal list.
The application of these grounds is not automatic. Their validity depends on how the facts are evidenced and on the specific context, as consistently interpreted by case law.
What formal requirements must be met for the dismissal to be valid?
In disciplinary termination, form is just as important as substance. Article 55 of the Estatuto de los Trabajadores requires the dismissal to be communicated in writing, through a dismissal letter that describes the facts clearly and precisely.
For the dismissal to be valid, the letter must, at a minimum:
- Describe specific facts, not generic value judgments.
- Include the effective date of the dismissal.
- Maintain consistency between the facts described and the legal ground invoked.
In certain cases, additional obligations apply. For example, when the employee is a legal workers’ representative or a union delegate, a prior expediente contradictorio must be processed.
In addition, if the employee is affiliated with a union known to the company, the corresponding union delegates must be given prior notice.
Failing to comply with these steps may invalidate the entire procedure, even if the underlying cause is real.
What common mistakes turn a disciplinary dismissal into an unfair dismissal?
Many disciplinary termination end up being declared improcedente due to mistakes that could have been avoided. The most common ones are usually related to form and evidence, rather than to the absence of misconduct.
The most frequent mistakes include:
- Vague or overly generic dismissal letters.
- Use of indeterminate concepts such as “poor performance” without objective data.
- Lack of prior documentation proving repetition or seriousness.
- Failure to review the applicable collective bargaining agreement before proceeding with the dismissal.
In practice, these shortcomings significantly weaken the company’s position in the event of a legal challenge.
Is it possible to correct a poorly executed disciplinary dismissal?
Labour regulations allow certain formal defects to be remedied. If the initial disciplinary dismissal does not meet the required formal standards, the company may issue a new dismissal within a 20-day period.
During that time, the employee must remain registered with Social Security and continue to receive their salary. The new dismissal only takes effect from its own date and not retroactively.
Although this option exists, resorting to it often increases conflict and conveys legal uncertainty. For this reason, proper preparation from the outset remains the most prudent approach.
How do courts classify disciplinary dismissals?
When a disciplinary dismissal is challenged, courts may classify it in three different ways, each with very different consequences.
| Classification | What it means | Consequences |
| Procedente (Fair dismissal) | Grounds and form are duly proven | Valid termination without compensation |
| Improcedente (Unfair dismissal) | Failure in evidence or form | Compensation or reinstatement |
| Nulo (Null and void dismissal) | Violation of fundamental rights | Mandatory reinstatement and back pay |
This classification determines the economic and organisational impact of the decision.
What situations require special caution before dismissing?
There are particularly protected situations in which a disciplinary dismissal is more likely to be declared nulo.
This includes pregnant employees, individuals on leave due to birth, adoption or breastfeeding, situations related to work-life balance, or cases involving gender-based violence.
In these circumstances, the company must clearly demonstrate that the reason for dismissal is entirely unrelated to the protected situation.
This protection even extends to the 12 months following the employee’s return to work after birth-related leave.
How can underperformance be properly proven?
Continuous and voluntary underperformance is one of the most complex grounds within disciplinary termination. Subjective perceptions or unclear comparisons are not sufficient.
For this ground to be valid, courts require the underperformance to be:
- Real, supported by objective data.
- Sustained over time, not isolated.
- Voluntary, not caused by factors beyond the employee’s control.
Comparisons must be made against agreed objectives, the employee’s own previous performance, or that of other employees in equivalent roles and similar conditions.
Frequently Asked Questions about Disciplinary Dismissals
- Does a disciplinary dismissal include severance pay?
No, only when it is declared unfair or null. If it is deemed fair, it does not entitle the employee to severance pay. - Is it mandatory to provide a dismissal letter?
Yes. Written notification is an essential legal requirement for a disciplinary dismissal to be valid. - Can a one-off mistake justify a disciplinary dismissal?
No. The conduct must be serious and culpable; isolated errors usually do not meet this requirement. - What deadline does the employee have to challenge the dismissal?
The employee has 20 working days from the effective date of the dismissal to file a challenge.
Does your team need legal support?
At GM Integra, we are here to help. We have a team of labour law specialists who can support you when complex situations arise in connection with disciplinary termination.