The new grounds for null and void dismissal that you need to know about

Since the end of June, Royal Decree-Law 5/2023 of 28 June has been in force, the text of which includes the transposition of the European Union Directive on the reconciliation of family and professional life for parents and carers. For employers, the regulation introduces new grounds for nullity of dismissal, both objective and disciplinary.

Specifically, Royal Decree-Law 5/2023, of 28 June, amends articles 53.4 and 55.5 of the revised text of the Workers’ Statute Law. It does so with the aim of protecting the right of workers to take their work-life balance leave without being dismissed for doing so.

The fact of expressly amending these articles is not trivial. In this way, dismissal for having taken such leave is expressly elevated to the category of objective or automatic nullity. This means that if the company fails to prove that the dismissal is justified, it will be declared null and void.

Directive protecting parents and carers transposed

This is a transposition of the European Directive 2019/1158 of 20 June 2019 on reconciling family and working life for parents and carers. In its Article 12 (“Protection against dismissal and burden of proof”), this Directive expressly states that “Member States shall take the necessary measures to prohibit the dismissal and any preparation for dismissal of a worker on the grounds that he/she has requested or taken leave referred to in Articles 4, 5 and 6, or time off work referred to in Article 9”.

What exactly do you mean?

Articles 4, 5 and 6 refer to paternity, parental and carer’s leave of five days for illness or hospitalisation.
Article 9 refers to flexible working arrangements.

New grounds for nullity of dismissal

In both objective and disciplinary dismissals, the renewed Workers’ Statute adds new grounds for nullity. Thus, dismissal is null and void for:

Employees during periods of suspension of the employment contract due to childbirth, parental leave or illness caused by pregnancy, childbirth or breastfeeding. Also when the period of notice granted ends within these periods.
Pregnant workers.
Persons who have requested the five days of paid leave due to serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest of the spouse, unmarried partner or relatives up to the second degree of consanguinity or affinity, including the blood relative of the unmarried partner, as well as any other person other than the above, who lives with the worker in the same home and who requires the effective care of the worker.
Persons who have applied for or are taking the leave referred to in the aforementioned Articles 4, 5 and 6.
Workers who have requested or are benefiting from the adaptations of working hours for reasons of reconciliation or the leave of absence provided for in Article 46.3.
Female workers who are victims of gender-based violence for exercising their right to effective judicial protection or comprehensive social assistance.

The changing labour regulations, which, as we have seen, directly affect the General Workers’ Statute, make it almost essential for most companies’ Human Resources departments to have external legal advice. At Confianz we can accompany you and avoid costly conflicts in time and money.