Spain: Dismissing Employees Who Previously Filed Claims Against Their Company

In this case, we examine the judgement of a Spanish High Court of Justice (Asturias), which confirmed the nullity of a second dismissal of an employee who had already obtained a declaration of nullity for a first dismissal just three months earlier.

The employee, with seniority dating from September 2023, was dismissed in April 2024 for alleged “voluntary and continuous decrease in performance.” In September 2024, the courts declared the dismissal NULL: no breach of obligations was proven, and the conflict was in fact linked to her refusal to accept changes to her working schedule.

The company was required to reinstate her, pay back wages, and compensate her with €5,000 for violation of fundamental rights. She returned to work at the end of September 2024. A few days later, on 4 October, she was temporarily assigned to the Gijón store.

At the end of that month, the sales manager sent her an email accusing her of the disappearance of several paint containers on dates when she had been assigned to different workplaces. She was given five days to submit her allegations.

The following day, upon reading the email, the employee commenced sick leave (anxiety), and on 30 October she filed a complaint with the Labour Inspectorate alleging conduct by the employer that she considered detrimental to her professional dignity.

In November, she was notified of the initiation of disciplinary proceedings and, one month later, she was dismissed again. The dismissal letter attributed three allegations to her: disappearance of products, suggesting she had appropriated them for her own benefit; insults directed at the store manager using expressions such as “scoundrel” or “bastard”; and alleged verbal insults to the sales manager by phone (“you are all scoundrels”).

The employee challenged the dismissal. At trial, the alleged facts were not proven: no inventories were provided, authorship was not established, and the insults were not proven in the terms set out in the dismissal letter. Consequently, the dismissal was declared null.

The key issue was not only the lack of evidence, but also the context: a prior dismissal already declared null, recent reinstatement, a complaint before the Labour Inspectorate, sick leave, and a second dismissal barely three months later.

Where there are indications of retaliation for having exercised judicial or administrative rights, the guarantee of indemnity is triggered, and the employer must robustly demonstrate that its decision is unrelated to that context. In this case, the company failed to do so.

Therefore, the dismissal was declared null: mandatory reinstatement + back pay + additional compensation for violation of fundamental rights amounting to €11,249.50, in addition to the compensation already received for the previous dismissal.

Dismissing an employee after reinstatement is possible, but where there is no proven cause and the context suggests a retaliatory reaction, the risk is no longer unfair dismissal—it is nullity.