Unfair Dismissal of an Illegal Foreign Worker

At Lexmovea, we understand that being fired without having the proper documentation can be an especially challenging and distressing experience. Therefore, we want to provide you with all the necessary information and support so that you can defend your rights as a foreign worker, whether you are in a legal or illegal situation in Spain.

What to do in case of an unfair dismissal as a foreign worker?

First of all, it is crucial to stay calm and not sign any documents without consulting a lawyer first. Signing any document without fully understanding its content could harm your rights, which is why we always recommend consulting a specialist. Gather all the documentation related to your dismissal, such as the dismissal letter, your employment contract, and your payslips. These documents will be essential to assess your situation and prepare an adequate defense. The more evidence we can provide for your case, the easier it will be to demonstrate and defend your rights.

As soon as you have these documents, contact us as soon as possible. The sooner we start the process, the faster we can advise you and defend your rights.

What do we offer for the dismissal of an illegal foreign worker?

At Lexmovea, we understand the importance of your situation, and we are here to support you every step of the way when it comes to an unfair dismissal as a foreign worker in Spain. Contact us to receive immediate and professional help, and together we will fight for your labor rights in Spain. Whether or not you have residence permission in Spain, it does not mean we cannot defend your rights as a worker.

I don’t have papers, and I was fired

Even if you are an undocumented worker, if you have been fired and need us to defend your rights as an illegal or regular worker in Spain, here’s what we can do for you in the case of an unfair dismissal of a foreign worker in Spain:

1. Personalized Advice: We will provide you with detailed information about your rights and the legal options available in your specific situation. Our goal is to ensure you fully understand your possibilities and how to proceed in the best way.
2. Processing the File: We will handle all the necessary administrative and legal management. From gathering and presenting documents to communicating with the relevant authorities, we take care of all the administrative aspects to ensure your case is managed efficiently.
3. Negotiation with the Company: We will fight to obtain the maximum compensation possible for you. We will negotiate directly with your employer to reach a fair and favorable agreement, protecting your interests at all times.
4. Representation in Court: If necessary, we will represent you in court with total professionalism and dedication. Our legal team will ensure that your voice is heard and that justice is done, defending your rights before the courts with the utmost competence.

Rights in the Event of Dismissal for Undocumented Foreign Workers

The employment contract entered into with a foreign worker without work authorization, although affected by the sanction of nullity according to Article 36.1 of Organic Law 4/2000, of January 11, on the rights and freedoms of foreigners in Spain and their social integration, does not leave the worker unprotected.

Despite the contract’s nullity, it has effects on the worker’s labor rights, and the worker may claim the following:

• Unpaid Wages: The worker has the right to receive any wages owed for the work performed.
• Vacation and Rest Days: The worker has the right to compensation for vacation days and rest days accrued during the employment relationship.
• Compensation for Unfair Dismissal: In the case of dismissal, an undocumented worker may be entitled to compensation if the dismissal is deemed unfair.

However, there are certain specifics in these cases:

• Inability to Be Reinstated: Even if the dismissal is deemed unfair, the employer cannot be forced to reinstate the worker if the worker lacks authorization to work in Spain.
• Processing Wages: In general, processing wages are not recognized, but the Supreme Court has allowed payment in some cases.
• Null Dismissal for Violation of Fundamental Rights: In these cases, the right to processing wages is recognized, but not to reinstatement.
• Termination of the Contract Due to Loss of Authorization: The loss of work authorization results in the termination of the contract for objective reasons, even though it may not be considered a valid cause of termination as agreed in the contract.

Labor Arraigo Reporting the Employer

Labor arraigo is a figure that allows foreigners in an irregular situation in Spain to regularize their status through an employment relationship with an employer. However, in some cases, workers may face situations of abuse or labor exploitation, which creates the need for action. If you find yourself in this situation, it’s important to know that you can file a complaint against your employer.

Filing a complaint against an employer means informing the competent authorities of any irregularities that affect your labor rights, such as failure to meet working conditions, unpaid wages, or inadequate working conditions. This action can be the first step in protecting your rights and, at the same time, strengthen your labor arraigo application. When your situation changes and you regularize, the time of regularization counts toward obtaining Spanish nationality.

It is essential to be well-informed about your rights and the available reporting channels. You can turn to the Labor Inspection to file the complaint anonymously and confidentially, ensuring your protection during the process. Additionally, having the support of a lawyer specialized in labor and immigration law can make the process easier and provide you with legal advice tailored to your situation.

Regulations Supporting the Defense of Undocumented Foreign Workers

Spanish legislation, particularly Organic Law 4/2000, of January 11, on the Rights and Liberties of Foreigners in Spain and their Social Integration (LOEX), establishes that the employment of a foreign worker without the required administrative authorization does not invalidate the employment contract concerning the worker’s rights. This protection extends to wages, vacations, rest periods, and compensation for unfair dismissal, as reiterated by the Supreme Court jurisprudence (STS, Rec. 2398/2012, of September 17, 2013).

It is important to highlight that, although the contract may be null, the employer is still obligated to pay the corresponding Social Security contributions for the period worked, according to Article 144 of the General Social Security Law. Failure to do so results in severe administrative penalties for very serious infractions.

However, jurisprudence has also established limits to these rights. For example, the STS Nº 955/2016, of November 16, 2016, clarifies that the loss of work authorization results in the termination of the contract for objective reasons, and cannot be considered a valid cause for termination agreed upon in the contract.

Additionally, the STS Nº 76/2017, of January 31, 2017, denies the right to unemployment benefits for workers in an irregular situation, even if they contributed to Social Security during their employment.

Types of Dismissals

• Disciplinary or Fair Dismissal: Regulated in Articles 54 and 55 of the Statute of Workers. Occurs due to serious and culpable breaches by the worker (such as absenteeism, disobedience, etc.). The violations must be clearly stated in the dismissal letter. The worker can file a lawsuit if they disagree with the dismissal.
• Dismissal for Objective Reasons: Regulated in Articles 52 and 53 of the Statute of Workers. Usually refers to economic or organizational reasons. The company must offer a severance of 20 days for each year of service. If the worker disagrees, they must file a claim for unfair dismissal.
• Unfair Dismissal: Regulated in Article 56 of the Statute of Workers. Occurs when the company dismisses the worker verbally or does not provide a reason. If the dismissal is deemed unfair, the company must compensate the worker with 33 days of salary for each year worked.

Consequences of Dismissing Undocumented Foreign Workers in Spain

If an undocumented worker is dismissed and the dismissal is declared unfair, the company must compensate the foreign worker. For example, if a foreign worker has worked from 03/02/2021 to 03/02/2023 with a salary of €1,200/month, the compensation would be €2,640 (calculated as €40/day for 66 days of compensation).

Irregular Hiring of Foreign Workers: Legal and Jurisprudential Repercussions for the Employer

Hiring foreign workers without the proper residence and work authorization in Spain has serious legal consequences for the employer, stemming from Organic Law 4/2000 and its development regulations, Royal Decree 557/2011.

Administrative Responsibility:

The LOEX classifies this conduct as a very serious violation, punishable by fines ranging from €10,001 to €100,000 for each worker hired irregularly. This fine is in addition to the amount of Social Security contributions the employer should have paid from the start of the employment relationship. In case of recurrence or special severity, the penalty may be even higher.

Labor Responsibility:

Despite the nullity of the contract due to lack of administrative authorization, the Supreme Court jurisprudence has established that the foreign worker in an irregular situation retains their labor rights. This means the employer must pay the worker the wages owed, accrued vacation, and rest periods, as well as the corresponding compensation in case of unfair dismissal. However, the reinstatement of the worker will not be possible due to the lack of work authorization.

Social Security Responsibility:

The employer is required to make Social Security contributions for the foreign worker, even if the worker is in an irregular situation. Failure to fulfill this obligation results in additional penalties and possible liability for damages in the case of common contingencies.

Expulsion of the Foreign Employer:

If the violating employer is also foreign, the administration may impose the sanction of expulsion from Spanish territory, in accordance with the principle of proportionality.

Relevant Jurisprudence:

The jurisprudence of the Supreme Court has been crucial in shaping the legal consequences of the irregular hiring of foreign workers. In rulings such as the STS of December 2, 1998, it has been established that the employer must contribute to Social Security for foreign workers who provide services without authorization, even if the contract is null. Furthermore, the STS Nº 955/2016, of November 16, 2016, clarified that the loss of work authorization does not exempt the employer from the obligation to compensate the worker in the case of dismissal.

Frequently Asked Questions about the Rights of Undocumented Foreign Workers

1. What labor rights protect undocumented foreign workers in the event of dismissal? Undocumented foreign workers enjoy the same labor rights as workers with legal documentation, including the right to compensation for unfair dismissal and the ability to challenge the employer’s decision in court.
2. Is there a right to compensation for dismissal for undocumented foreign workers? Yes, undocumented foreign workers have the right to compensation for dismissal, under the same conditions as workers with legal documentation, as long as the requirements established by labor law are met.
3. What does the Organic Law on Foreigners (LOEX) say about the labor rights of undocumented foreigners? The LOEX explicitly recognizes that the lack of work and residence authorization does not invalidate the employment contract or the rights derived from it for foreign workers.
4. Has the Supreme Court recognized the labor rights of undocumented foreigners? Yes, the Supreme Court has repeatedly stated that foreign workers working without work authorization enjoy all the labor rights recognized under Spanish legislation.
5. What types of dismissal can affect undocumented foreign workers? Undocumented foreign workers can be subject to disciplinary dismissals, objective dismissals, or unfair dismissals, just like any other worker.
6. What is a disciplinary dismissal? A disciplinary dismissal occurs due to serious and culpable breaches by the worker, as specified in the dismissal letter, such as unjustified absenteeism, disobedience, or continuous and voluntary reduction in performance.
7. What is an objective dismissal? An objective dismissal is based on economic, technical, organizational, or production reasons related to the company. In this case, the employer must provide proof of the reason and pay compensation of 20 days per year worked.
8. When is a dismissal considered unfair? A dismissal is considered unfair when the employer fails to provide proof of the reason for dismissal or does not meet the formal requirements established by law. In this case, the compensation is 33 days of salary per year worked.
9. Can an undocumented foreign worker be reinstated after a dismissal? No, the reinstatement of an undocumented foreign worker is not possible due to the lack of residence and work authorization.
10. What obligations does the employer have if the foreign worker’s work permit expires? The employer cannot dismiss the worker simply due to the expiration of the work permit. They must proceed with an objective dismissal, justifying the reason and paying the corresponding compensation.
11. What penalties can an employer face for hiring undocumented foreigners? Hiring undocumented foreigners constitutes a very serious violation under the LOEX, with fines ranging from €6,001 to €60,000.
12. What is the Supreme Court’s jurisprudence on the lack of residence and work authorization? The Supreme Court has established that the lack of residence and work authorization does not invalidate the employment contract or prevent the foreign worker from accessing benefits derived from international worker protection agreements.
13. Is it possible to dismiss an undocumented foreign worker? Dismissing an undocumented foreign worker raises several legal and practical issues. In general, Spanish law establishes that irregular work is illegal, and therefore, the employment relationship with an undocumented worker lacks validity. However, dismissing a worker in this situation can be complex and must be handled carefully.