In Spain and in accordance with the Worker's Statute, in the case in which a dismissal is established as unjust (i.e. there are sufficient grounds for dismissal), the employer has the right to do the following:
The employer can opt either for 1) the readmission of the worker within a period of 5 days from the notification of the sentence including payment of the salaries referred to in paragraph b) or 2) the payment of the following amounts which should be established in the same (notification):
a) An indemnity of 45 days salary per year worked, paying a proportional amount for periods lesser than a year and up to a maximum of 42 monthly payments.
b) An amount equal to the salaries you have not received from the time of dismissal until the notification of the sentence which declares the dismissal unjust or until the worker finds another employment prior to the sentence the amounts received from such being discounted from the total amount due.
The employer must keep the employee registered for social security during this period.
In the case in which the option either of readmission or indemnification falls on the employer, the amount referred to in paragraph b) will be limited to the salaries due from the date of the dismissal to the prior conciliation if in the conciliation the employer recognises the unjust nature of the dismissal and offers the indemnity provided for in paragraph a), depositing the amount in the Labour Court at the disposal of the worker within a period of 48 hours following the conciliation.
In the case in which the employer does not opt for either the readmission or indemnification of the worker, it will be understood that the former will apply.
If the person dismissed were a legal representative of the workers or a trade union representative, the choice of either option (i.e. either to return to work or accept the indemnity) will fall on him or her. On not opting for either, it will be understood that he or she has opted for readmission. When the option, express or assumed, is for readmission, this will be mandatory.
Irrespective of the legal situation, if a previously dismissed employee is readmitted due to insufficient grounds but would really prefer to receive the indemnity, in many cases and on a practical level, it may well be possible for him or her to negotiate a smaller indemnity to the satisfaction of both parties.
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