Unfair Dismissal in Spain (Despido Improcedente): The 33-Días Rule Explained (2026)

A dismissal in Spain is not automatically valid because the employer wrote a letter and paid something. It is valid only if it has a real legal cause and the correct form. When it fails either test, a Juzgado de lo Social declares it improcedente, and that verdict, not the employer's own label, decides what happens next.

This page explains when a dismissal is improcedente, what it pays, who gets to choose between reinstatement and the money, and the short deadline that decides whether you can raise any of it at all.

Information last verified on 22 July 2026. This page provides general legal information about Spanish employment law and does not constitute legal advice in an individual case.

When a dismissal is improcedente

Improcedente is a verdict, not a type of dismissal. A dismissal for any reason, disciplinary or objective, becomes improcedente when one of two things is wrong:

• The cause is not proven. The employer alleged a serious breach or an economic cause, and at trial it does not hold up. A disciplinary dismissal built on facts the employer cannot prove, or on conduct that is not serious enough, falls here.
• The form is defective. Art. 55.1 ET requires a written carta de despido that states the facts and the date. If the letter is missing, vague about the facts, or the employer skipped a required step (for example the hearing of the workers' representatives where it applies), the dismissal can be improcedente on form alone even if something real happened.

This is different from a nulo dismissal, which is reserved for dismissals that breach a fundamental right or hit a specially protected worker (for example during pregnancy, or maternity or paternity leave). A nulo dismissal is not compensated; it is undone, and the worker is reinstated with back pay.

What improcedente pays: the 33-días rule

When a dismissal is improcedente, art. 56.1 ET sets the compensation at 33 días of salary per year of service, with periods under a year prorated by month, up to a maximum of 24 mensualidades. The daily wage for this is built from the gross annual salary, including the proportional part of the pagas extraordinarias, so it is usually higher than a bare monthly figure divided by 30.

For anyone with long service there is a second layer. Under disposición transitoria undécima, time worked before 12 February 2012 is paid at the older rate of 45 días per year, and time after at 33. The two tranches are added, subject to an overall ceiling of 720 días of salary, unless the pre-2012 part on its own already exceeds that, and in no case above 42 mensualidades. That calculation is the one no official portal runs for you, so we built a tool that does: the severance calculator.

Who chooses: reinstatement or the money

A point that surprises many workers is that the choice between getting the job back (readmisión) and taking the indemnización usually belongs to the employer, not to them. Art. 56.1 gives the employer 5 días from the notification of the judgment to opt for one or the other. If it says nothing, reinstatement is understood.

There is one important exception. Under art. 56.4, if the dismissed worker is a legal representative of the workforce or a trade-union delegate, the choice belongs to the worker.

The route the employer picks changes the money:

• Reinstatement brings the salarios de tramitación, the salary the worker would have earned between the dismissal and the judgment, on top of getting the job back.
• The indemnización ends the contract on the original dismissal date, and no salarios de tramitación are owed for an improcedente dismissal settled this way.

The 20-day clock

Everything above depends on acting in time. Art. 59.3 ET gives just 20 días hábiles, working days, from the dismissal to challenge it, and it is a plazo de caducidad. A caducidad is stricter than a prescripción: it is not reset by an ordinary demand letter.

Filing the papeleta de conciliación does suspend it, which is why that step usually comes first. Let the 20 días pass and the dismissal generally stands, whatever its merits. If you believe a dismissal was unfair, the deadline, not the argument, is the first thing to secure.

The European Social Charter question

There is a live debate a reader should know about, framed accurately. In a decision made public in July 2024, the Comité Europeo de Derechos Sociales concluded, by a large majority, that Spain's system of fixed and capped compensation for unfair dismissal breaches Article 24 of the European Social Charter, because a tariff with a ceiling cannot always repair the real harm or deter the employer.

What that decision does and does not do matters. It does not strike down or amend the ET. The 33-días system remains fully in force and is applied by the courts exactly as set out here.

The decision is a finding of non-compliance that puts political and judicial pressure on Spain to reform the rule, and some lower courts have begun awarding additional compensation in specific cases. But as the law stands, the figures on this page are the ones that apply.

This page is general legal information about Spanish employment law and does not constitute legal advice in an individual case. The controlling text is always the current version of the Estatuto de los Trabajadores in the BOE.

Frequently Asked Questions

What does despido improcedente mean?

It is a court's verdict that a dismissal was unfair, because its cause was not proven or its form was defective. The consequence under art. 56.1 of the Estatuto de los Trabajadores is that the employer must either reinstate the worker or pay compensation of 33 días of salary per year of service, capped at 24 monthly payments.

Can I choose to get my job back instead of the money?

Usually not. Under art. 56.1 ET the choice between reinstatement and the indemnización belongs to the employer, which has 5 días from the judgment to decide. The exception is in art. 56.4: if you are a legal representative of the workforce or a trade-union delegate, the choice is yours.

What are salarios de tramitación?

They are the wages you would have earned between the dismissal and the court's judgment. For an unfair dismissal, they are owed when the employer chooses to reinstate you, on top of the job itself. If the employer instead pays the indemnización, the contract is treated as ending on the dismissal date and these wages are not owed.

How long do I have to claim unfair dismissal in Spain?

Twenty working days (días hábiles) from the dismissal, under art. 59.3 of the Estatuto de los Trabajadores. It is a plazo de caducidad, which is not extended the way a prescripción can be, although filing the papeleta de conciliación suspends it. Acting quickly is essential.

Did Europe make Spanish severance illegal?

No. In 2024 the Comité Europeo de Derechos Sociales found that Spain's fixed, capped compensation does not comply with the European Social Charter. That finding did not change or repeal the Estatuto de los Trabajadores. The 33-días rule remains in force and is applied by the courts, although the decision is fuelling a reform debate.