Dismissing an employee for claiming labour rights may lead to the dismissal being declared null
In recent years, courts have clearly strengthened the protection of employees who claim labour rights against their employer.
When an employee files a claim — for example regarding overtime, salary, professional classification, or working conditions — what is legally known as the guarantee against retaliation (indemnity guarantee) comes into play.
This means that the company cannot take retaliatory action against the employee for exercising their rights.
What happens if the employee is dismissed
If, after making a labour claim, the employee is dismissed, the courts will examine whether the dismissal may be related to that claim.
When it is considered that retaliation exists, the dismissal is not declared unfair but null and void. The difference is very significant. An unfair dismissal allows the employer to choose between reinstating the employee or paying compensation.
A null dismissal obliges the company to:
• Reinstate the employee
• Pay back pay (processing wages)
• Maintain the employment relationship as if the dismissal had never occurred
A formal lawsuit is not required. This protection is not only activated when the employee files a lawsuit in court.
It may also apply when the employee:
• Formally claims unpaid amounts
• Reports a labour irregularity
• Communicates a violation of rights
• Contacts the Labour Inspectorate
In all these cases, the employee may be considered to be exercising a legitimate right.
The importance of properly documenting business decisions
For companies, it is essential that any disciplinary decision or termination of employment is properly justified and documented. If there has been a prior claim by the employee, the judicial review will be particularly strict.
For this reason, it is advisable that any labour conflict be managed with prior legal advice, assessing risks and properly documenting the company’s decisions.
In labour matters, a poorly made decision taken in haste can often end up becoming a significant legal problem.
At Monday, we support both companies and management teams in the preventive management of labour conflicts, with the aim of finding solutions before the issue reaches the courts.